Exhibit
1.1
McKESSON CORPORATION
$1,000,000,000
5.25% Notes due 2013
5.70% Notes due 2017
UNDERWRITING AGREEMENT
February 28, 2007
Banc of America Securities LLC
Wachovia Capital Markets, LLC
Underwriting Agreement
February 28,
2007
BANC OF AMERICA SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
As Representatives of the several Underwriters
c/o
Banc of America Securities LLC
9 West 57th Street
New York, NY 10019
Ladies and Gentlemen:
Introductory.
McKesson Corporation, a Delaware corporation (the “Company”), proposes to issue
and sell to the several underwriters named in Schedule A (the “Underwriters”), acting severally and
not jointly, the respective amounts set forth in such Schedule A of $500,000,000 aggregate
principal amount of the Company’s 5.25% Notes due 2013 (the “2013 Notes”) and $500,000,000
aggregate principal amount of the Company’s 5.70% Notes due 2017 (the “2017 Notes” and, together
with the 2013 Notes, the “Notes”). Banc of America Securities LLC and Wachovia Capital Markets,
LLC have agreed to act as representatives of the several Underwriters (in such capacity, the
“Representatives”) in connection with the offering and sale of the Notes.
The Notes will be issued pursuant to an indenture to be dated as of the Closing Date (the
“Base Indenture”), between the Company and The Bank of New York Trust Company, N.A., as trustee
(the “Trustee”). Certain terms of the Notes will be established pursuant to an officer’s
certificate (the “Officer’s Certificate”) to the Base Indenture (together with the Base Indenture,
the “Indenture”). The Notes will be issued in book-entry form in the name of Cede & Co., as
nominee of The Depository Trust Company (the “Depositary”), pursuant to a Letter of
Representations, to be dated on or before the Closing Date (as defined in Section 2 below) (the
“DTC Agreement”), between the Company and the Depositary.
The Company has prepared and filed with the Securities and Exchange Commission (the
“Commission”) a registration statement on Form S-3 (File No. 333-124921), which contains a base
prospectus (the “Base Prospectus”), to be used in connection with the public offering and sale of
debt securities, including the Notes, and other securities of the Company under the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder (collectively, the
“Securities Act”), and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act. Such registration statement, including the financial statements, exhibits and
schedules thereto, in the form in which it became effective under the Securities Act, including any
information deemed to be a part thereof at the time of effectiveness pursuant to Rule 430B under
the Securities Act, is called the “Registration Statement.” The term “Prospectus” shall mean the
final prospectus supplement relating to the Notes, together with the
Base Prospectus, that is first filed pursuant to Rule 424(b) under the Securities Act after
the date and time that this Agreement is executed (the “Execution Time”) by the parties hereto.
The term “Preliminary Prospectus” shall mean any preliminary prospectus supplement relating to the
Notes, together with the Base Prospectus, that is first filed with the Commission pursuant to Rule
424(b) under the Securities Act. Any reference herein to the Registration Statement, the
Preliminary Prospectus or the Prospectus shall be deemed to refer to and include the documents that
are or are deemed to be incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Securities Act prior to 1:00 p.m. (Eastern time) on February 28, 2007 (the “Initial Sale Time”).
All references in this Agreement to the Registration Statement, the Preliminary Prospectus, the
Prospectus, or any amendments or supplements to any of the foregoing, shall be deemed to be the
electronically transmitted copy thereof filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval System (“EDGAR”).
All references in this Agreement to financial statements and schedules and other information
which is “contained,” “included” or “stated” (or other references of like import) in the
Registration Statement, the Prospectus or the Preliminary Prospectus shall be deemed to mean and
include all such financial statements and schedules and other information which is or is deemed to
be incorporated by reference in the Registration Statement, the Prospectus or the Preliminary
Prospectus, as the case may be, prior to the Initial Sale Time; and all references in this
Agreement to amendments or supplements to the Registration Statement, the Prospectus or the
Preliminary Prospectus shall be deemed to include the filing of any document under the Securities
Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder
(collectively, the “Exchange Act”), which is or is deemed to be incorporated by reference in the
Registration Statement, the Prospectus or the Preliminary Prospectus, as the case may be, after the
Initial Sale Time.
The Company hereby confirms its agreements with the Underwriters as follows:
Section 1.
Representations and Warranties of the Company
The Company hereby represents, warrants and covenants to each Underwriter as follows:
(a)
Compliance with Registration Requirements.
The Company meets the requirements for use of
Form S-3 under the Securities Act. The Registration Statement has become effective under the
Securities Act and no stop order suspending the effectiveness of the Registration Statement has
been issued under the Securities Act and no proceedings for that purpose have been instituted or
are pending or, to the knowledge of the Company, are contemplated or threatened by the Commission,
and any request on the part of the Commission for additional information has been complied with.
In addition, the Indenture has been duly qualified under the Trust Indenture Act of 1939, as
amended, and the rules and regulations promulgated thereunder (the “Trust Indenture Act”).
At the respective times the Registration Statement and any post-effective amendments thereto
(including the filing with the Commission of the Company’s Annual Report on Form 10-K for the year
ended 2006 (the “Annual Report on Form 10-K”)) became effective and as of the date hereof the
Registration Statement and any amendments thereto (i) complied and will comply in all material
respects with the requirements of the Securities Act and the Trust Indenture Act,
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and (ii) did not and will not contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary to make the statements therein not
misleading. At the date of the Prospectus and at the Closing Date, neither the Prospectus nor any
amendments or supplements thereto included or will include an untrue statement of a material fact
or omitted or will omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading. Notwithstanding the
foregoing, the representations and warranties in this subsection shall not apply to statements in
or omissions from the Registration Statement or any post-effective amendment or the Prospectus or
any amendments or supplements thereto made in reliance upon and in conformity with information
furnished to the Company in writing by any of the Underwriters through the Representatives
expressly for use therein (it being understood and agreed that the only such information furnished
by any Underwriter through the Representatives consists of the information described as such in
Section 8 hereof) and to those parts of the Registration Statement that constitute the Statement of
Eligibility (Form T-1) under the Trust Indenture Act of the Trustee.
Each Preliminary Prospectus and the Prospectus, at the time each was filed with the SEC,
complied in all material respects with the Securities Act, and the Preliminary Prospectus and the
Prospectus delivered to the Underwriters for use in connection with the offering of the Notes will,
at the time of such delivery, be identical to any electronically transmitted copies thereof filed
with the Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(b)
Disclosure Package.
The term “Disclosure Package” shall mean (i) the Preliminary
Prospectus dated February 27, 2007, (ii) the issuer free writing prospectuses as defined in Rule
433 under the Securities Act (each, an “Issuer Free Writing Prospectus”), if any, identified in
Schedule B hereto and (iii) any other free writing prospectus that the parties hereto shall
hereafter expressly agree in writing to treat as part of the Disclosure Package. As of the Initial
Sale Time, the Disclosure Package did not contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The preceding sentence does not apply to
statements in or omissions from the Disclosure Package based upon and in conformity with written
information furnished to the Company by any Underwriter through the Representatives specifically
for use therein, it being understood and agreed that the only such information furnished by any
Underwriter through the Representatives consists of the information described as such in Section 8
hereof.
(c)
Incorporated Documents
. The documents incorporated by reference in the Registration
Statement , the Disclosure Package and the Prospectus, when they became effective or were filed
with the Commission, as the case may be, conformed in all material respects to the requirements of
the Securities Act or the Exchange Act, as applicable, and none of such documents contained an
untrue statement of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the circumstances under which they
were made, not misleading; and any further documents so filed and incorporated by reference in the
Registration Statement, the Disclosure Package and the Prospectus or any further amendment or
supplement thereto, when such documents become effective or are filed with the Commission, as the
case may be, will conform in all material
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respects to the requirements of the Securities Act or the Exchange Act, as applicable, and
will not contain an untrue statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading.
(d)
Company is a Well-Known Seasoned Issuer
. At the time of the most recent amendment thereto
for the purposes of complying with Section 10(a)(3) of the Securities Act (whether such amendment
was by post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
Exchange Act or form of prospectus), at the time the Company or any person acting on its behalf
(within the meaning, for this clause only, of Rule 163(c) under the Securities Act) made any offer
relating to the Notes in reliance on the exemption of Rule 163 under the Securities Act, and as of
the Execution Time, the Company was and is a “well known seasoned issuer” as defined in Rule 405
under the Securities Act.
(e)
Company is not an Ineligible Issuer
. (i) At the time of filing the Registration Statement
and (ii) as of the Execution Time (with such date being used as the determination date for purposes
of this clause (ii)), the Company was not and is not an “ineligible issuer” (as defined in Rule 405
under the Securities Act), without taking account of any determination by the Commission pursuant
to Rule 405 under the Securities Act that it is not necessary that the Company be considered an
ineligible issuer.
(f)
Issuer Free Writing Prospectuses
. Each Issuer Free Writing Prospectus, as of its issue
date and at all subsequent times through the completion of the offering of Notes under this
Agreement or until any earlier date that the Company notified or notifies the Representatives as
described in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the Registration
Statement, the Disclosure Package or the Prospectus, including any document incorporated or deemed
to be incorporated by reference therein that has not been superseded or modified. If at any time
following issuance of an Issuer Free Writing Prospectus there occurred or occurs an event or
development as a result of which such Issuer Free Writing Prospectus conflicted or would conflict
with the information contained in the Registration Statement, the Preliminary Prospectus or the
Prospectus the Company has promptly notified or will promptly notify the Representatives and has
promptly amended or supplemented or will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict. The foregoing two sentences
do not apply to statements in or omissions from any Issuer Free Writing Prospectus based upon and
in conformity with written information furnished to the Company by any Underwriter through the
Representatives specifically for use therein, it being understood and agreed that the only such
information furnished by any Underwriter through the Representatives consists of the information
described as such in Section 8 hereof.
(g)
Distribution of Offering Material By the Company.
The Company has not distributed and
will not distribute, prior to the later of the Closing Date and the completion of the Underwriters’
distribution of the Notes, any offering material in connection with the offering and sale of the
Notes other than the Preliminary Prospectus, the Prospectus, any Permitted Free Writing Prospectus
(as defined below) or the Registration Statement.
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(h)
No Applicable Registration or Other Similar Rights.
There are no persons with
registration or other similar rights to have any equity or debt securities registered for sale
under the Registration Statement or included in the offering contemplated by this Agreement, except
for such rights as have been duly waived.
(i)
The Underwriting Agreement.
This Agreement has been duly authorized, executed and
delivered by the Company.
(j)
Authorization of the Indenture
. The Indenture has been duly qualified under the Trust
Indenture Act and has been duly authorized by the Company and, when executed and delivered by the
Company and assuming the due authorization, execution and delivery by the Trustee, will constitute
a valid and binding agreement of the Company, enforceable against the Company in accordance with
its terms, except as the enforcement thereof may be limited by bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other similar laws relating to or affecting the rights and
remedies of creditors or by general equitable principles.
(k)
Authorization of the Notes.
The Notes to be purchased by the Underwriters from the
Company are in the form contemplated by the Indenture, have been duly authorized for issuance and
sale pursuant to this Agreement and the Indenture and, at the Closing Date, will have been duly
executed by the Company and, when authenticated in the manner provided for in the Indenture and
delivered against payment of the purchase price therefor, will constitute valid and binding
obligations of the Company, enforceable in accordance with their terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
or other similar laws relating to or affecting the rights and remedies of creditors or by general
equitable principles, and will be entitled to the benefits of the Indenture.
(l)
Description of the Notes and the Indenture.
The Notes and the Indenture conform in all
material respects to the descriptions thereof contained in the Disclosure Package and the
Prospectus.
(m)
No Material Adverse Change
. Except as otherwise disclosed in the Disclosure Package,
subsequent to the respective dates as of which information is given in the Disclosure Package,
there has been no material adverse change, or any development that could reasonably be expected to
result in a material adverse change, in the condition, financial or otherwise, or in the earnings,
management, business, properties, results of operations or prospects, whether or not arising from
transactions in the ordinary course of business, of the Company and its subsidiaries, considered as
one entity (any such change is called a “Material Adverse Change”).
(n)
Independent Accountants.
Deloitte & Touche LLP, who have expressed their opinion with
respect to the Company’s audited financial statements for the fiscal years ended 2004, 2005 and
2006 incorporated by reference in the Registration Statement, the Preliminary Prospectus and the
Prospectus, are independent public accountants with respect to the Company as required by the
Securities Act and the Exchange Act and are a registered public accounting firm with the Public
Company Accounting Oversight Board.
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(o)
Preparation of the Financial Statements.
The financial statements together with the
related notes thereto incorporated by reference in the Registration Statement, the Preliminary
Prospectus and the Prospectus present fairly in all material respects the consolidated financial
position of the Company and its subsidiaries as of and at the dates indicated and the results of
their operations and cash flows for the periods specified. Such financial statements comply as to
form with the accounting requirements of the Securities Act and have been prepared in conformity
with generally accepted accounting principles as applied in the United States applied on a
consistent basis throughout the periods involved, except as may be expressly stated in the related
notes thereto.
(p)
Incorporation and Good Standing of the Company and its Significant Subsidiary.
The
Company has been duly incorporated and is validly existing as a corporation in good standing under
the laws of the State of Delaware and has corporate power and authority to own or lease, as the
case may be, and operate its properties and to conduct its business as described in the Disclosure
Package and the Prospectus and to enter into and perform its obligations under this Agreement. The
Company is duly qualified as a foreign corporation to transact business and is in good standing in
each jurisdiction in which such qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except for such jurisdictions where the failure to
so qualify or to be in good standing would not, individually or in the aggregate, have a material
adverse effect on the condition, financial or otherwise, earnings, management, business,
properties, results of operations or prospects of the Company and its subsidiaries, considered as
one entity (a “Material Adverse Effect”). McKesson Information Solutions Holdings Limited, an
Ireland corporation, is the Company’s sole significant subsidiary, as defined by Rule 1-02(w) of
Regulation S-X under the Securities Act (the “Significant Subsidiary”), and has been duly
incorporated and is validly existing as a corporation under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its property and to conduct its
business as presently conducted.
(q)
Non-Contravention of Existing Instruments; No Further Authorizations or Approvals
Required.
The execution and delivery by the Company of this Agreement, the Indenture and the Notes
(collectively, the “Operative Instruments”), and the consummation by the Company of the
transactions contemplated thereby, including the issuance and sale of the Notes, (A) will not
violate or conflict with or result in any contravention of any provision of the General Corporation
Law of the State of Delaware (the “DGCL”), or (B) conflict with the charter or by-laws of the
Company, or (C) constitute a violation of, or a breach or default under the laws of any agreement,
contract, bond, indenture or other instrument binding upon the Company or any of its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, (D) violate or conflict
with, or result in any contravention of, any judgment, order or decree of any governmental body,
agency or court having jurisdiction over the Company or any subsidiary of the Company, except for a
violation, conflict or contravention which would not, individually or in the aggregate, have a
Material Adverse Effect, (E) do not and will not result in the imposition of any lien, charge or
encumbrance upon any assets of the Company or any of its subsidiaries, pursuant to the terms of any
agreement or instrument to which the Company or any of its subsidiaries is a party or by which any
of them or any of their respective properties is bound, except for any liens, charges or
encumbrances which would not, individually or in the aggregate, have a Material Adverse Effect, and
(F) do not require any consent, approval, authorization or order of, or qualification with, any
governmental body or agency, except such as may be required
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by the securities or Blue Sky laws of the various states, the Securities Act, the Exchange
Act, the Trust Indenture Act and the securities laws of any jurisdiction outside the United States
in which the Notes are offered.
(r)
No Material Actions or Proceedings.
There are no legal or governmental proceedings
pending or, to the best of the Company’s knowledge, threatened to which the Company or any of its
subsidiaries is a party or to which any of the properties of the Company or any of its subsidiaries
is subject (i) which are required to be described in the documents incorporated by reference in the
Registration Statement, the Disclosure Package or the Prospectus and are not so described or (ii)
which could reasonably be expected to result in a Material Adverse Change, or materially affect the
power or ability of the Company to perform its obligations under the Operative Instruments or to
consummate any of the transactions contemplated by the Disclosure Package and the Prospectus or the
Operative Instruments. There are no contracts or other documents that are required to be described
in the documents incorporated by reference in the Registration Statement, the Disclosure Package or
Prospectus or to be filed as exhibits to the Registration Statement that are not described or filed
as required.
(s)
Intellectual Property Rights.
Except as set forth in the Disclosure Package and the
Prospectus, to the Company’s knowledge, the Company or its subsidiaries own or possess a valid
right to use all patents, trademarks, service marks, trade names, copyrights, patentable
inventions, trade secrets, know-how and other intellectual property (collectively, the
“Intellectual Property”) used by the Company or its subsidiaries in, and material to, the conduct
of the Company’s or its subsidiaries’ business as now conducted or as proposed in the Disclosure
Package and the Prospectus to be conducted, except as would not, individually or in the aggregate,
result in a Material Adverse Change or adversely affect the consummation of the transactions
contemplated by this Agreement.
(t)
All Necessary Permits, etc.
Each of the Company and its subsidiaries has all necessary
consents, authorizations, approvals, orders, certificates and permits (collectively, “Permits”) of
and from, and has made all declarations and filings with, all federal, state, provincial, local and
other governmental authorities, all self-regulatory organizations and all courts and other
tribunals, to own, lease, license and use its properties and assets and to conduct its business in
the manner described in the Disclosure Package and the Prospectus, except to the extent that the
failure to obtain or file could not reasonably be expected to have a Material Adverse Effect.
Neither the Company nor any of its subsidiaries has received any notice of proceedings relating to
the revocation or modification of any such Permits which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, could reasonably be expected to have a
Material Adverse Effect.
(u)
Compliance with Environmental Laws.
The Company and its subsidiaries (i) are in
compliance with any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or hazardous or toxic
substances or regulated wastes, pollutants or contaminants (“Environmental Laws”), (ii) have
received all permits, licenses or other approvals required of them under applicable Environmental
Laws to conduct their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other approvals or
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failure to comply with the terms and conditions of such permits, licenses or approvals would
not, individually or in the aggregate, have a Material Adverse Effect.
(v)
Environmental Costs
. There are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any permit, license or approval, any
related constraints on operating activities and any potential liabilities to third parties) which
would, individually or in the aggregate, have a Material Adverse Effect, except as otherwise
disclosed or incorporated by reference in the Disclosure Package.
(w)
Tax Law Compliance.
The Company and its subsidiaries have filed all necessary federal,
state, local and foreign income and franchise tax returns in a timely manner and have paid all
taxes required to be paid by any of them and, if due and payable, any related or similar
assessment, fine or penalty levied against any of them, except for any taxes, assessments, fines or
penalties as may be being contested in good faith and by appropriate proceedings, except where a
default to make such filings or payments would not result in a Material Adverse Change.
(x)
Company Not an “Investment Company.
The Company is not, and after receipt of payment for
the Notes and the application of the proceeds thereof as contemplated under the caption “Use of
Proceeds” in the Preliminary Prospectus and the Prospectus will not be an “investment company”
within the meaning of the Investment Company Act of 1940, as amended (the “Investment Company
Act”).
(y)
No Price Stabilization or Manipulation.
The Company has not taken and will not take,
directly or indirectly, any action designed to or that would be reasonably expected to cause or
result in stabilization or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Notes.
(z)
Sarbanes-Oxley Compliance
. The Company has complied in all material respects with the
applicable provisions of the Sarbanes-Oxley Act of 2002 and the rules and regulations promulgated
in connection therewith.
(aa)
Controls.
The Company maintains a system of internal control over financial reporting
(as such term is defined in Rule 13a-15(f) under the Exchange Act) that complies with the
requirements of the Exchange Act and has been designed to provide reasonable assurance regarding
the reliability of financial reporting and the preparation of financial statements for external
purposes in accordance with generally accepted accounting principles. The internal control over
financial reporting of the Company is effective.
Any certificate signed by an officer of the Company and delivered to the Representatives or to
counsel for the Underwriters shall be deemed to be a representation and warranty by the Company to
each Underwriter as to the matters set forth therein.
Section 2.
Purchase, Sale and Delivery of the Shares.
(a)
The Notes.
The Company agrees to issue and sell to the several Underwriters, severally
and not jointly, all of the Notes upon the terms herein set forth. On the basis of the
representations, warranties and agreements herein contained, and upon the terms but subject to
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the conditions herein set forth, each Underwriter agrees, severally and not jointly, to
purchase from the Company the aggregate principal amount of Notes set forth opposite its name on
Schedule A, plus any additional principal amount of Notes that such Underwriter may become
obligated to purchase pursuant to Section 10 of this Agreement, at a purchase price of 98.955% of
the principal amount of the 2013 Notes and 99.185% of the principal amount of the 2017 Notes,
payable on the Closing Date.
(b)
The Closing Date.
Delivery of certificates for the Notes in global form to be purchased
by the Underwriters and payment therefor shall be made at the offices of Mayer, Brown, Rowe & Maw
LLP, 71 South Wacker Drive, Chicago, IL 60606 (or such other place as may be agreed to by the
Company and the Representatives) at 9:00 a.m., New York City time, on March 5, 2007, or such other
time and date as the Underwriters and the Company shall mutually agree (the time and date of such
closing are called the “Closing Date”).
(c)
Public Offering of the Notes.
The Representatives hereby advise the Company that the
Underwriters intend to offer for sale to the public, as described in the Disclosure Package and the
Prospectus, their respective portions of the Notes as soon after the Execution Time as the
Representatives, in their sole judgment, have determined is advisable and practicable.
(d)
Payment for the Notes.
Payment for the Notes shall be made at the Closing Date by wire
transfer of immediately available funds to the order of the Company.
It is understood that the Representatives have been authorized, for their own accounts and for
the accounts of the several Underwriters, to accept delivery of and receipt for, and make payment
of the purchase price for, the Notes that the Underwriters have agreed to purchase. The
Representatives may (but shall not be obligated to) make payment for any Notes to be purchased by
any Underwriter whose funds shall not have been received by the Representatives by the Closing Date
for the account of such Underwriter, but any such payment shall not relieve such Underwriter from
any of its obligations under this Agreement.
(e)
Delivery of the Notes.
The Company shall deliver, or cause to be delivered, to the
Representatives for the accounts of the several Underwriters the Notes at the Closing Date, against
the irrevocable release of a wire transfer of immediately available funds for the amount of the
purchase price therefor. The Notes shall be issued in book-entry only form and shall be
represented by one or more global certificates in such denominations and registered in such names
and denominations as the Representatives shall have requested at least two full business days prior
to the Closing Date and shall be made available for inspection on the business day preceding the
Closing Date at a location in New York City, as the Representatives may designate. Time shall be
of the essence, and delivery at the time and place specified in this Agreement is a further
condition to the obligations of the Underwriters.
Section 3.
Covenants of the Company.
The Company covenants and agrees with each Underwriter as follows:
(a)
Compliance with Securities Regulations and Commission Requests.
The Company will promptly
notify the Representatives, and confirm the notice in writing, of (i) the effectiveness during the
Prospectus Delivery Period (as defined below) of any post-effective
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amendment to the Registration Statement or the filing of any supplement or amendment to the
Preliminary Prospectus or the Prospectus, (ii) the receipt of any comments from the Commission
during the Prospectus Delivery Period, (iii) any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Preliminary Prospectus or the
Prospectus or for additional information, and (iv) the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or of any order preventing or suspending
the use of the Preliminary Prospectus or the Prospectus, or of the suspension of the qualification
of the Notes for offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424 under the Securities Act and will take such steps as it deems necessary to
ascertain promptly whether the Preliminary Prospectus and the Prospectus transmitted for filing
under Rule 424 under the Securities Act was received for filing by the Commission and, in the event
that it was not, it will promptly file such document. The Company will use its reasonable best
efforts to prevent the issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(b)
Filing of Amendments.
During such period beginning on the date of this Agreement and
ending on the later of the Closing Date or such date as, in the opinion of counsel for the
Underwriters, the Prospectus is no longer required by law to be delivered in connection with sales
of the Notes by an Underwriter or dealer, including in circumstances where such requirement may be
satisfied pursuant to Rule 172 under the Securities Act (the “Prospectus Delivery Period”), the
Company will give the Representatives notice of its intention to file or prepare any amendment to
the Registration Statement (including any filing under Rule 462(b) under the Securities Act), or
any amendment, supplement or revision to the Disclosure Package or the Prospectus, whether pursuant
to the Securities Act, the Exchange Act or otherwise, will furnish the Representatives with copies
of any such documents a reasonable amount of time prior to such proposed filing or use, as the case
may be, and will not file or use any such document to which the Representatives or counsel for the
Underwriters shall reasonably object.
(c)
Delivery of Registration Statements.
The Company will deliver, upon request, to the
Representatives and counsel for the Underwriters, without charge, a conformed copy of the
Registration Statement as originally filed and of each amendment thereto (without exhibits) for
each of the Underwriters. The Registration Statement and each amendment thereto furnished to the
Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
(d)
Delivery of Prospectuses.
The Company will deliver to each Underwriter, without charge,
as many copies of the Preliminary Prospectus as such Underwriter may reasonably request, and the
Company hereby consents to the use of such copies for purposes permitted by the Securities Act.
The Company will furnish to each Underwriter, without charge, during the Prospectus Delivery
Period, such number of copies of the Prospectus as such Underwriter may reasonably request. The
Preliminary Prospectus and the Prospectus and any amendments or supplements thereto furnished to
the Underwriters will be identical to any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR, except to the extent permitted by Regulation S-T.
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(e)
Continued Compliance with Securities Laws
. The Company will comply with the Securities
Act and the Exchange Act so as to permit the completion of the distribution of the Notes as
contemplated in this Agreement and in the Registration Statement, the Disclosure Package and the
Prospectus. If at any time during the Prospectus Delivery Period, any event shall occur or
condition shall exist as a result of which it is necessary, in the opinion of counsel for the
Underwriters or for the Company, to amend the Registration Statement in order that the Registration
Statement will not contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not misleading or to
amend or supplement the Disclosure Package or the Prospectus in order that the Disclosure Package
or the Prospectus, as the case may be, will not include an untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances existing at the Initial Sale Time or at the time it is delivered or conveyed to a
purchaser, not misleading, or if it shall be necessary, in the opinion of either such counsel, at
any such time to amend the Registration Statement or amend or supplement the Disclosure Package or
the Prospectus in order to comply with the requirements of any law, the Company will (1) notify the
Representatives of any such event, development or condition and (2) promptly prepare and file with
the Commission, subject to Section 3(b) hereof, such amendment or supplement as may be necessary to
correct such statement or omission or to make the Registration Statement, the Disclosure Package or
the Prospectus comply with such law, and the Company will furnish to the Underwriters, without
charge, such number of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f)
Blue Sky Compliance.
The Company shall cooperate with the Representatives and counsel for
the Underwriters to qualify or register the Notes for sale under (or obtain exemptions from the
application of) the state securities or blue sky laws of those jurisdictions designated by the
Representatives, shall comply with such laws and shall continue such qualifications, registrations
and exemptions in effect so long as required for the distribution of the Notes. The Company shall
not be required to qualify to transact business or to take any action that would subject it to
general service of process in any such jurisdiction where it is not presently qualified or where it
would be subject to taxation as a foreign business. The Company will advise the Representatives
promptly of the suspension of the qualification or registration of (or any such exemption relating
to) the Notes for offering, sale or trading in any jurisdiction or any initiation or threat of any
proceeding for any such purpose, and in the event of the issuance of any order suspending such
qualification, registration or exemption, the Company shall use its reasonable best efforts to
obtain the withdrawal thereof at the earliest possible moment.
(g)
Use of Proceeds.
The Company shall apply the net proceeds from the sale of the Notes sold
by it in the manner described under the caption “Use of Proceeds” in the Preliminary Prospectus and
the Prospectus.
(h)
Depositary.
The Company will cooperate with the Underwriters and use its reasonable best
efforts to permit the Notes to be eligible for clearance and settlement through the facilities of
the Depositary.
(i)
Periodic Reporting Obligations.
During the Prospectus Delivery Period, the Company shall
file, on a timely basis, with the Commission all reports and documents required to be filed under
the Exchange Act.
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(j)
Agreement Not to Offer or Sell Additional Securities.
During the period commencing on the
date hereof and ending on the Closing Date, the Company will not, without the prior written consent
of the Representatives (which consent may be withheld at the sole discretion of the
Representatives), offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or warrant to purchase,
or otherwise transfer or dispose of, directly or indirectly, any debt securities of or guaranteed
by the Company which are substantially similar to the Notes.
(k)
Final Term Sheet
. The Company will prepare a final term sheet, in a form approved by the
Representatives and included in Exhibit A to this Agreement, and will file such term sheet pursuant
to Rule 433(d) under the Securities Act within the time required by such rule (such term sheet, the
“Final Term Sheet”). Any such Final Term Sheet is an Issuer Free Writing Prospectus for purposes
of this Agreement.
(l)
Permitted Free Writing Prospectuses
. The Company represents that it has not made, and
agrees that, unless it obtains the prior written consent of the Representatives, it will not make,
any offer relating to the Notes that would constitute an Issuer Free Writing Prospectus or that
would otherwise constitute a “free writing prospectus” (as defined in Rule 405 under the Securities
Act) required to be filed by the Company with the Commission or retained by the Company under Rule
433 under the Securities Act; provided that the prior written consent of the Representatives shall
be deemed to have been given in respect of any Issuer Free Writing Prospectuses included in
Schedule B to this Agreement. Any such free writing prospectus consented to or deemed to be
consented to by the Representatives is hereinafter referred to as a “Permitted Free Writing
Prospectus.” The Company agrees that (i) it has treated and will treat, as the case may be, each
Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) has complied and
will comply, as the case may be, with the requirements of Rules 164 and 433 under the Securities
Act applicable to any Permitted Free Writing Prospectus, including in respect of timely filing with
the Commission, legending and record keeping. The Company consents to the use by any Underwriter
of a free writing prospectus that (a) is not an “issuer free writing prospectus” as defined in Rule
433, and (b) contains only (i) information describing the preliminary terms of the Notes or their
offering, (ii) information permitted by Rule 134 under the Securities Act or (iii) information that
describes the final terms of the Notes or their offering and that is included in the Final Term
Sheet of the Company contemplated in Section 3(k).
(m)
No Manipulation of Price.
The Company will not take, directly or indirectly, any action
designed to cause or result in, or that has constituted or might reasonably be expected to
constitute, under the Exchange Act or otherwise, the stabilization or manipulation of the price of
any securities of the Company to facilitate the sale or resale of the Notes.
The Representatives, on behalf of the several Underwriters, may, in their sole discretion,
waive in writing the performance by the Company of any one or more of the foregoing covenants or
extend the time for their performance.
Section 4.
Payment of Expenses.
The Company agrees to pay all costs, fees and
expenses incurred in connection with the performance of its obligations hereunder and in connection
with the transactions contemplated hereby, including without limitation (i) all
12
expenses incident to the issuance and delivery of the Notes (including all printing and
engraving costs), (ii) all necessary issue, transfer and other stamp taxes in connection with the
issuance and sale of the Notes, (iii) all fees and expenses of the Company’s counsel, independent
public or certified public accountants and other advisors, (iv) all costs and expenses incurred in
connection with the preparation, printing, filing, shipping and distribution of the Registration
Statement (including financial statements, exhibits, schedules, consents and certificates of
experts), each Issuer Free Writing Prospectus, the Preliminary Prospectus and the Prospectus, and
all amendments and supplements thereto, and this Agreement, the Indenture, the DTC Agreement and
the Notes, (v) all filing fees, reasonable attorneys’ fees and expenses incurred by the Company or
the Underwriters in connection with qualifying or registering (or obtaining exemptions from the
qualification or registration of) all or any part of the Notes in accordance with Section 3(f) for
offer and sale under the state securities or blue sky laws, and, if requested by the
Representatives, preparing a “Blue Sky Survey” or memorandum, and any supplements thereto, advising
the Underwriters of such qualifications, registrations and exemptions, (vi) the filing fees
incident to, and the reasonable fees and disbursements of counsel to the Underwriters in connection
with, the review, if any, by the NASD of the terms of the sale of the Notes, (vii) the fees and
expenses of the Trustee, including the reasonable fees and disbursements of counsel for the Trustee
in connection with the Indenture and the Notes, (viii) any fees payable in connection with the
rating of the Notes with the ratings agencies, (ix) all fees and expenses (including reasonable
fees and expenses of counsel) of the Company in connection with approval of the Notes by the
Depositary for “book-entry” transfer, (x) all other fees, costs and expenses referred to in Item 14
of Part II of the Registration Statement, and (xi) all other fees, costs and expenses incurred in
connection with the performance of its obligations hereunder for which provision is not otherwise
made in this Section. Except as provided in this Section 4 and Sections 6, 8 and 9 hereof, the
Underwriters shall pay their own expenses, including the fees and disbursements of their counsel.
Section 5.
Conditions of the Obligations of the Underwriters.
The obligations of
the several Underwriters to purchase and pay for the Notes as provided herein on the Closing Date
shall be subject to the accuracy of the representations and warranties on the part of the Company
set forth in Section 1 hereof as of the date hereof and as of the Closing Date as though then made
and to the timely performance by the Company of its covenants and other obligations hereunder, and
to each of the following additional conditions:
a)
Effectiveness of Registration Statement
. The Registration Statement has become effective
under the Securities Act and on the Closing Date no stop order suspending the effectiveness of the
Registration Statement shall have been issued under the Securities Act and no proceedings for that
purpose shall have been instituted or be pending or, to the knowledge of the Company, threatened by
the Commission, any request on the part of the Commission for additional information shall have
been complied with to the reasonable satisfaction of counsel to the Underwriters. The Preliminary
Prospectus and the Prospectus shall have been filed with the Commission in accordance with Rule
424(b) under the Securities Act (or any required post-effective amendment providing such
information shall have been filed and declared effective in accordance with the requirements of
Rule 430B under the Securities Act).
b)
Accountants’ Comfort Letter.
On the date hereof, the Representatives shall have received
from Deloitte & Touche LLP, independent public or certified public accountants for the
13
Company, a letter dated the date hereof addressed to the Underwriters, in form and substance
satisfactory to the Representatives with respect to the audited and unaudited financial statements
and certain financial information contained in the Registration Statement, the Preliminary
Prospectus and the Prospectus.
c)
Bring-down Comfort Letter
. On the Closing Date, the Representatives shall have received
from Deloitte & Touche LLP, independent public or certified public accountants for the Company, a
letter dated such date, in form and substance satisfactory to the Representatives, to the effect
that they reaffirm the statements made in the letter furnished by them pursuant to subsection (b)
of this Section 5, except that the specified date referred to therein for the carrying out of
procedures shall be no more than three business days prior to the Closing Date.
d)
No Objection.
If the Registration Statement and/or the offering of the Notes has been
filed with the NASD for review, the NASD shall not have raised any objection with respect to the
fairness and reasonableness of the underwriting terms and arrangements.
e)
No Material Adverse Change or Ratings Agency Change.
For the period from and after the
date of this Agreement and prior to the Closing Date:
(i) in the judgment of the Representatives there shall not have occurred any Material
Adverse Change; and
(ii) there shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a possible change that
does not indicate the direction of the possible change, in the rating accorded any
securities of the Company or any of its subsidiaries by any “nationally recognized
statistical rating organization” as such term is defined for purposes of Rule 436(g)(2)
under the Securities Act.
f)
Opinion of Counsel for the Company
. On the Closing Date, the Representatives shall have
received the opinion of Laureen E. Seeger, Executive Vice President, General Counsel and Secretary
of the Company, dated as of such Closing Date, to the effect set forth in Exhibit B.
g)
Opinion of Counsel for the Company.
On the Closing Date, the Representatives shall have
received the opinion of Skadden, Arps, Slate, Meagher & Flom LLP, special counsel for the Company,
dated as of such Closing Date, to the effect set forth in Exhibit C.
h)
Opinion of Counsel for the Underwriters.
On the Closing Date, the Representatives shall
have received the favorable opinion of Mayer, Brown, Rowe & Maw LLP, counsel for the Underwriters,
dated as of such Closing Date, with respect to such matters as may be reasonably requested by the
Underwriters.
i)
Officers’ Certificate.
On the Closing Date, the Representative shall have received a
written certificate executed by the Chairman of the Board or the Chief Executive Officer or a Vice
President of the Company and the Chief Financial Officer or Chief Accounting Officer of the
Company, dated as of such Closing Date, to the effect that:
14
(i) the Company has received no stop order suspending the effectiveness of the
Registration Statement, and no proceedings for such purpose have been instituted or, to the
knowledge of such officers, threatened by the Commission;
(ii) the representations and warranties of the Company set forth in Section 1 of this
Agreement are true and correct with the same force and effect as though expressly made on
and as of such Closing Date; and
(iii) the Company has complied with all the agreements hereunder and satisfied all the
conditions on its part to be performed or satisfied hereunder at or prior to such Closing
Date.
j)
Additional
Documents
.
On or before the Closing Date, the Representatives and counsel for
the Underwriters shall have received such information, documents and opinions as they may
reasonably require for the purposes of enabling them to pass upon the issuance and sale of the
Notes as contemplated herein, or in order to evidence the accuracy of any of the representations
and warranties, or the satisfaction of any of the conditions or agreements, herein contained.
If any condition specified in this Section 5 is not satisfied when and as required to be
satisfied, this Agreement may be terminated by the Representatives by notice to the Company at any
time on or prior to the Closing Date, which termination shall be without liability on the part of
any party to any other party, except that Sections 4, 6, 8, 9 and 17 shall at all times be
effective and shall survive such termination.
Section 6.
Reimbursement of Underwriters’ Expenses.
If this Agreement is terminated
by the Representatives pursuant to Section 5, 10 or 11, or if the sale to the Underwriters of the
Notes on the Closing Date is not consummated because of any refusal, inability or failure on the
part of the Company to perform any agreement herein or to comply with any provision hereof, the
Company agrees to reimburse the Representatives and the other Underwriters (or such Underwriters as
have terminated this Agreement with respect to themselves), severally, upon demand for all
out-of-pocket expenses (including but not limited to fees and disbursements of counsel, printing
expenses, travel expenses, postage, facsimile and telephone charges) that shall have been
reasonably incurred by the Representatives and the Underwriters in connection with the proposed
purchase and the offering and sale of the Notes.
Section 7.
Effectiveness of this Agreement.
This Agreement shall not become
effective until the execution of this Agreement by the parties hereto.
Section 8.
Indemnification.
(a)
Indemnification of the Underwriters.
The Company agrees to indemnify and hold harmless
each Underwriter, its directors, officers, employees and agents, and each person, if any, who
controls any Underwriter within the meaning of the Securities Act and the Exchange Act against any
loss, claim, damage, liability or expense, as incurred, to which such Underwriter or such director,
officer, employee, agent or controlling person may become subject, under the Securities Act, the
Exchange Act or other federal or state statutory law or regulation, or at common law or otherwise
(including in settlement of any litigation, if such settlement is effected
15
with the written consent of the Company), insofar as such loss, claim, damage, liability or
expense (or actions in respect thereof as contemplated below) arises out of or is based (i) upon
any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement, or any amendment thereto, or the omission or alleged omission therefrom of a material
fact required to be stated therein or necessary to make the statements therein not misleading; or
(ii) upon any untrue statement or alleged untrue statement of a material fact contained in any
Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a material fact necessary in
order to make the statements therein, in the light of the circumstances under which they were made,
not misleading; and to reimburse each Underwriter and each such director, officer, employee, agent
and controlling person for any and all expenses (including the reasonable fees and disbursements of
counsel chosen by Banc of America Securities LLC) as such expenses are reasonably incurred by such
Underwriter or such director, officer, employee, agent or controlling person in connection with
investigating, defending, settling, compromising or paying any such loss, claim, damage, liability,
expense or action;
provided, however
, that the foregoing indemnity agreement shall not apply to any
loss, claim, damage, liability or expense to the extent, but only to the extent, arising out of or
based upon any untrue statement or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives expressly for use in the Registration Statement, any Issuer
Free Writing Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or
supplement thereto). The indemnity agreement set forth in this Section 8(a) shall be in addition to
any liabilities that the Company may otherwise have.
(b)
Indemnification of the Company, its Directors and Officers.
Each Underwriter agrees,
severally and not jointly, to indemnify and hold harmless the Company, each of its directors, each
of its officers who signed the Registration Statement and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act, against any loss, claim,
damage, liability or expense, as incurred, to which the Company or any such director, officer or
controlling person may become subject, under the Securities Act, the Exchange Act, or other federal
or state statutory law or regulation, or at common law or otherwise (including in settlement of any
litigation, if such settlement is effected with the written consent of such Underwriter), insofar
as such loss, claim, damage, liability or expense (or actions in respect thereof as contemplated
below) arises out of or is based (i) upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement, or any amendment thereto, or the omission or
alleged omission therefrom of a material fact required to be stated therein or necessary to make
the statements therein not misleading; or (ii) upon any untrue statement or alleged untrue
statement of a material fact contained in any Issuer Free Writing Prospectus, the Preliminary
Prospectus or the Prospectus (or any amendment or supplement thereto) or the omission or alleged
omission therefrom of a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading, in each case to the extent,
but only to the extent, that such untrue statement or alleged untrue statement or omission or
alleged omission was made in the Registration Statement, any Issuer Free Writing Prospectus, the
Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto), in reliance upon
and in conformity with written information furnished to the Company by any Underwriter through the
Representatives expressly for use therein; and to reimburse the Company, or any such director,
officer or
16
controlling person for any legal and other expense reasonably incurred by the Company, or any
such director, officer or controlling person in connection with investigating, defending, settling,
compromising or paying any such loss, claim, damage, liability, expense or action. The Company
hereby acknowledges that the only information furnished to the Company by any Underwriter through
the Representatives expressly for use in the Registration Statement, any Issuer Free Writing
Prospectus, the Preliminary Prospectus or the Prospectus (or any amendment or supplement thereto)
are the statements set forth in the fifth paragraph concerning the terms of the offering by the
Underwriters, the third sentence of the eighth paragraph regarding market making by the
Underwriters, the ninth and tenth paragraphs concerning short sales, stabilizing transactions and
purchases to cover short positions created by the Underwriters, in each case, under the caption
“Underwriting” in the Preliminary Prospectus and the Prospectus. The indemnity agreement set forth
in this Section 8(b) shall be in addition to any liabilities that each Underwriter may otherwise
have.
(c)
Notifications and Other Indemnification Procedures.
Promptly after receipt by an
indemnified party under this Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made against an indemnifying party
under this Section 8, notify the indemnifying party in writing of the commencement thereof, but the
omission so to notify the indemnifying party will not relieve it from any liability which it may
have to any indemnified party for contribution or otherwise than under the indemnity agreement
contained in this Section 8 or to the extent it is not prejudiced as a proximate result of such
failure. In case any such action is brought against any indemnified party and such indemnified
party seeks or intends to seek indemnity from an indemnifying party, the indemnifying party will be
entitled to participate in, and, to the extent that it shall elect, jointly with all other
indemnifying parties similarly notified, by written notice delivered to the indemnified party, to
assume the defense thereof with counsel reasonably satisfactory to such indemnified party;
provided, however, such indemnified party shall have the right to employ its own counsel in any
such action and to participate in the defense thereof, but the fees and expenses of such counsel
shall be at the expense of such indemnified party, unless: (i) the employment of such counsel has
been specifically authorized in writing by the indemnifying party; (ii) the indemnifying party has
failed promptly to assume the defense and employ counsel reasonably satisfactory to the indemnified
party; or (iii) the named parties to any such action (including any impleaded parties) include both
such indemnified party and the indemnifying party or any affiliate of the indemnifying party, and
such indemnified party shall have reasonably concluded that either (x) there may be one or more
legal defenses available to it which are different from or additional to those available to the
indemnifying party or such affiliate of the indemnifying party or (y) a conflict may exist between
such indemnified party and the indemnifying party or such affiliate of the indemnifying party (it
being understood, however, that the indemnifying party shall not, in connection with any one such
action or separate but substantially similar or related actions in the same jurisdiction arising
out of the same general allegations or circumstances, be liable for the fees and expenses of more
than one separate firm of attorneys (in addition to a single firm of local counsel) for all such
indemnified parties, which firm shall be designated in writing by the Representatives and that all
such reasonable fees and expenses shall be reimbursed as they are incurred). Upon receipt of
notice from the indemnifying party to such indemnified party of such indemnifying party’s election
so to assume the defense of such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this Section 8 for any legal
or other
17
expenses subsequently incurred by such indemnified party in connection with the defense
thereof unless the indemnified party shall have employed separate counsel in accordance with the
proviso to the next preceding sentence, in which case the reasonable fees and expenses of counsel
shall be at the expense of the indemnifying party.
(d)
Settlements.
The indemnifying party under this Section 8 shall not be liable for any
settlement of any proceeding effected without its written consent, but if settled with such consent
or if there be a final judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party against any loss, claim, damage, liability or expense by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the indemnified party for fees and
expenses of counsel as contemplated by Section 8(c) hereof, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its written consent if (i)
such settlement is entered into more than 30 days after receipt by such indemnifying party of the
aforesaid request and (ii) such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No indemnifying party shall,
without the prior written consent of the indemnified party, effect any settlement, compromise or
consent to the entry of judgment in any pending or threatened action, suit or proceeding in respect
of which any indemnified party is or could have been a party and indemnity was or could have been
sought hereunder by such indemnified party, unless such settlement, compromise or consent (i)
includes an unconditional release of such indemnified party from all liability on claims that are
the subject matter of such action, suit or proceeding and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act, by or on behalf of any indemnified
party.
Section 9.
Contribution.
If the indemnification provided for in Section 8 is for
any reason held to be unavailable to or otherwise insufficient to hold harmless an indemnified
party in respect of any losses, claims, damages, liabilities or expenses referred to therein, then
each indemnifying party shall contribute to the aggregate amount paid or payable by such
indemnified party, as incurred, as a result of any losses, claims, damages, liabilities or expenses
referred to therein (i) in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Notes pursuant to this Agreement or (ii) if the allocation provided by clause (i)
above is not permitted by applicable law, in such proportion as is appropriate to reflect not only
the relative benefits referred to in clause (i) above but also the relative fault of the Company,
on the one hand, and the Underwriters, on the other hand, in connection with the statements or
omissions which resulted in such losses, claims, damages, liabilities or expenses, as well as any
other relevant equitable considerations. The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, in connection with the offering of the Notes
pursuant to this Agreement shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of the Notes pursuant to this Agreement (before deducting expenses)
received by the Company, and the total underwriting discount received by the Underwriters, in each
case as set forth on the front cover page of the Prospectus bear to the aggregate initial public
offering price of the Notes as set forth on such cover. The relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information
18
supplied by the Company, on the one hand, or the Underwriters, on the other hand, and the
parties’ relative intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission.
The amount paid or payable by a party as a result of the losses, claims, damages, liabilities
and expenses referred to above shall be deemed to include, subject to the limitations set forth in
Section 8(c), any reasonable legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company and the Underwriters agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation which does not take
account of the equitable considerations referred to in this Section 9.
Notwithstanding the provisions of this Section 9, no Underwriter shall be required to
contribute any amount in excess of the underwriting commissions received by such Underwriter in
connection with the Notes underwritten by it and distributed to the public. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent misrepresentation.
The Underwriters’ obligations to contribute pursuant to this Section 9 are several, and not joint,
in proportion to their respective underwriting commitments as set forth opposite their names in
Schedule A. For purposes of this Section 9, each director, officer, employee and agent of an
Underwriter and each person, if any, who controls an Underwriter within the meaning of the
Securities Act and the Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company with the meaning of the Securities Act
and the Exchange Act shall have the same rights to contribution as the Company.
Section 10.
Default of One or More of the Several Underwriters.
If, on the Closing
Date, any one or more of the several Underwriters shall fail or refuse to purchase Notes that it or
they have agreed to purchase hereunder on such date, and the aggregate principal amount of Notes,
which such defaulting Underwriter or Underwriters agreed but failed or refused to purchase does not
exceed 10% of the aggregate principal amount of the Notes to be purchased on such date, the other
Underwriters shall be obligated, severally, in the proportion to the aggregate principal amounts of
such Notes set forth opposite their respective names on Schedule A bears to the aggregate principal
amount of such Notes set forth opposite the names of all such non-defaulting Underwriters, or in
such other proportions as may be specified by the Representatives with the consent of the
non-defaulting Underwriters, to purchase such Notes which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date, any
one or more of the Underwriters shall fail or refuse to purchase such Notes and the aggregate
principal amount of such Notes with respect to which such default occurs exceeds 10% of the
aggregate principal amount of Notes to be purchased on such date, and arrangements satisfactory to
the Representatives and the Company for the purchase of such Notes are not made within 48 hours
after such default, this Agreement shall terminate without liability of any party to any other
party except that the provisions of Sections 4, 6, 8, 9 and 17 shall at all times be effective and
shall survive such termination. In any such case, either the
19
Representatives or the Company shall have the right to postpone the Closing Date, but in no
event for longer than seven days in order that the required changes, if any, to the Registration
Statement, any Issuer Free Writing Prospectus, the Preliminary Prospectus or the Prospectus or any
other documents or arrangements may be effected.
As used in this Agreement, the term “Underwriter” shall be deemed to include any person
substituted for a defaulting Underwriter under this Section 10. Any action taken under this
Section 10 shall not relieve any defaulting Underwriter from liability in respect of any default of
such Underwriter under this Agreement.
Section 11.
Termination of this Agreement.
Prior to the Closing Date, this
Agreement may be terminated by the Representatives by notice given to the Company if at any time
(i) trading or quotation in any of the Company’s securities shall have been suspended or limited by
the Commission, The New York Stock Exchange or the Pacific Exchange, Inc., or trading in securities
generally on either the Nasdaq Stock Market, The New York Stock Exchange or the Pacific Exchange,
Inc. shall have been suspended or limited, or minimum or maximum prices shall have been generally
established on any of such stock exchanges by the Commission or the NASD; (ii) a general banking
moratorium shall have been declared by any of federal or New York authorities; (iii) there shall
have occurred any outbreak or escalation of national or international hostilities or any crisis or
calamity involving the United States, or any change in the United States or international financial
markets, or any substantial change or development involving a prospective substantial change in
United States’ or international political, financial or economic conditions, as in the judgment of
the Representatives is material and adverse and makes it impracticable or inadvisable to market the
Notes in the manner and on the terms described in the Disclosure Package or the Prospectus or to
enforce contracts for the sale of securities; (iv) in the judgment of the Representatives there
shall have occurred any Material Adverse Change; or (v) there shall have occurred a material
disruption in commercial banking or securities settlement or clearance services. Any termination
pursuant to this Section 11 shall be without liability of any party to any other party except as
provided in Sections 4 and 6 hereof, and provided further that Sections 4, 6, 8, 9 and 17 shall
survive such termination and remain in full force and effect.
Section 12
.
No Fiduciary Duty
. The Company acknowledges and agrees that: (i) the
purchase and sale of the Notes pursuant to this Agreement, including the determination of the
public offering price of the Notes and any related discounts and commissions, is an arm’s-length
commercial transaction between the Company, on the one hand, and the several Underwriters, on the
other hand, and the Company is capable of evaluating and understanding and understands and accepts
the terms, risks and conditions of the transactions contemplated by this Agreement; (ii) in
connection with each transaction contemplated hereby and the process leading to such transaction
each Underwriter is and has been acting solely as a principal and is not the financial advisor,
agent or fiduciary of the Company or its affiliates, stockholders, creditors or employees or any
other party; (iii) no Underwriter has assumed or will assume an advisory, agency or fiduciary
responsibility in favor of the Company with respect to any of the transactions contemplated hereby
or the process leading thereto (irrespective of whether such Underwriter has advised or is
currently advising the Company on other matters) and no Underwriter has any obligation to the
Company with respect to the offering contemplated hereby except the obligations expressly set forth
in this Agreement; (iv) the several Underwriters and their
20
respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Company and that the several Underwriters have no obligation to
disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (v)
the Underwriters have not provided any legal, accounting, regulatory or tax advice with respect to
the offering contemplated hereby and the Company has consulted its own legal, accounting,
regulatory and tax advisors to the extent it deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Company and the several Underwriters with respect to the subject matter hereof. The
Company hereby waives and releases, to the fullest extent permitted by law, any claims that the
Company may have against the several Underwriters with respect to any breach or alleged breach of
agency or fiduciary duty.
Section 13.
Representations and Indemnities to Survive Delivery.
The respective
indemnities, agreements, representations, warranties and other statements of the Company, of its
officers and of the several Underwriters set forth in or made pursuant to this Agreement (i) will
remain operative and in full force and effect, regardless of any (A) investigation, or statement as
to the results thereof, made by or on behalf of any Underwriter, the officers or employees of any
Underwriter, or any person controlling the Underwriter, the Company, the officers or employees of
the Company, or any person controlling the Company, as the case may be or (B) acceptance of the
Notes and payment for them hereunder and (ii) will survive delivery of and payment for the Notes
sold hereunder and any termination of this Agreement.
Section 14.
Notices.
All communications hereunder shall be in writing and shall be
mailed, hand delivered or telecopied and confirmed to the parties hereto as follows:
If to the Representatives:
Banc of America Securities LLC
40 West 57
th
Street
New York, NY 10019
Facsimile: 646-313-4803
Attention: High Grade Transaction Management/Legal
and
Wachovia Capital Markets, LLC
301 South College Street
Charlotte, NC 28288
Facsimile: 704-383-0353
Attention: Legal
21
with a copy to:
Mayer, Brown, Rowe & Maw LLP
71 South Wacker Drive
Chicago, IL 60606
Facsimile: 312-706-8106
Attention: Edward S. Best
If to the Company:
McKesson Corporation
One Post Street
San Francisco, CA 94104
Facsimile: 415-983-8826
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071
Facsimile: 213-687-5600
Attention: Gregg A. Noel
Any party hereto may change the address for receipt of communications by giving written notice
to the others.
Section 15.
Successors.
This Agreement will inure to the benefit of and be binding
upon the parties hereto, including any substitute Underwriters pursuant to Section 10 hereof, and
to the benefit of the directors, officers, employees, agents and controlling persons referred to in
Sections 8 and 9, and in each case their respective successors, and no other person will have any
right or obligation hereunder. The term “successors” shall not include any purchaser of the Notes
as such from any of the Underwriters merely by reason of such purchase.
Section 16.
Partial Unenforceability.
The invalidity or unenforceability of any
Section, paragraph or provision of this Agreement shall not affect the validity or enforceability
of any other Section, paragraph or provision hereof. If any Section, paragraph or provision of
this Agreement is for any reason determined to be invalid or unenforceable, there shall be deemed
to be made such minor changes (and only such minor changes) as are necessary to make it valid and
enforceable.
Section 17.
Governing Law Provisions.
THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE
TO AGREEMENTS MADE AND TO BE PERFORMED IN THAT STATE, INCLUDING WITHOUT LIMITATION SECTION 5-1401
OF THE NEW YORK GENERAL OBLIGATIONS LAW.
22
Section 18.
General Provisions.
This Agreement may be executed in two or more
counterparts, each one of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument. This Agreement may not be amended or modified
unless in writing by all of the parties hereto, and no condition herein (express or implied) may be
waived unless waived in writing by each party whom the condition is meant to benefit. The Section
headings herein are for the convenience of the parties only and shall not affect the construction
or interpretation of this Agreement.
Each of the parties hereto acknowledges that it is a sophisticated business person who was
adequately represented by counsel during negotiations regarding the provisions hereof, including,
without limitation, the indemnification provisions of Section 8 and the contribution provisions of
Section 9, and is fully informed regarding said provisions. Each of the parties hereto further
acknowledges that the provisions of Sections 8 and 9 hereto fairly allocate the risks in light of
the ability of the parties to investigate the Company, its affairs and its business in order to
assure that adequate disclosure has been made in the Registration Statement, the Disclosure Package
and the Prospectus (and any amendments and supplements thereto), as required by the Securities Act
and the Exchange Act.
23
If the foregoing is in accordance with your understanding of our agreement, kindly sign and
return to the Company the enclosed copies hereof, whereupon this instrument, along with all
counterparts hereof, shall become a binding agreement in accordance with its terms.
|
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|
|
|
|
|
Very truly yours,
MCKESSON CORPORATION
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By:
|
/s/ Nicholas A. Loiacono
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|
|
Name:
|
Nicholas A. Loiacono
|
|
|
|
|
Title:
|
Vice President and Treasurer
|
|
24
The foregoing Underwriting Agreement is hereby confirmed and accepted by the Representatives
as of the date first above written.
BANC OF AMERICA SECURITIES LLC
WACHOVIA CAPITAL MARKETS, LLC
Acting as Representatives of the
several Underwriters named in
the attached Schedule A.
|
|
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BY: BANC OF AMERICA SECURITIES LLC
|
|
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By:
|
/s/ Peter J. Carbone
|
|
|
|
|
Name:
|
Peter J. Carbone
|
|
|
|
|
Title:
|
Vice President
|
|
|
|
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BY: WACHOVIA CAPITAL MARKETS, LLC
|
|
|
By:
|
/s/ Kevin A. Smith
|
|
|
|
|
Name:
|
Kevin A. Smith
|
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|
|
|
Title:
|
Managing Director
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|
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25
SCHEDULE A
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|
|
|
|
|
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|
|
|
|
|
|
Aggregate
|
|
Aggregate
|
|
|
|
Principal
|
|
Principal
|
|
|
|
Amount of 2013
|
|
Amount of 2017
|
|
|
|
Notes to be
|
|
Notes to be
|
|
Underwriters
|
|
Purchased
|
|
Purchased
|
|
Banc of America Securities LLC
|
|
$
|
150,000,000
|
|
|
$
|
150,000,000
|
|
|
Wachovia Capital Markets, LLC
|
|
|
150,000,000
|
|
|
|
150,000,000
|
|
|
Goldman, Sachs & Co.
|
|
|
50,000,000
|
|
|
|
50,000,000
|
|
|
J.P. Morgan Securities Inc.
|
|
|
50,000,000
|
|
|
|
50,000,000
|
|
|
KeyBanc Capital Markets, a division of McDonald Investments Inc.
|
|
|
20,000,000
|
|
|
|
20,000,000
|
|
|
Lazard Capital Markets LLC
|
|
|
20,000,000
|
|
|
|
20,000,000
|
|
|
Rabo Securities USA, Inc.
|
|
|
20,000,000
|
|
|
|
20,000,000
|
|
|
Scotia Capital (USA) Inc.
|
|
|
20,000,000
|
|
|
|
20,000,000
|
|
|
SunTrust Capital Markets, Inc.
|
|
|
20,000,000
|
|
|
|
20,000,000
|
|
|
Total
|
|
$
|
500,000,000
|
|
|
$
|
500,000,000
|
|
Sch. A-1
SCHEDULE B
Issuer Free Writing Prospectuses
Final Term Sheet dated February 28, 2007
EX. B-1
Exhibit 4.1
McKESSON CORPORATION
and
THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
Indenture
Dated as of March 5, 2007
Debt Securities
CROSS REFERENCE SHEET*
Between
Provisions
of Trust Indenture Act (as defined herein) and Indenture, dated as of March 5,
2007, between MCKESSON CORPORATION and THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee:
|
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|
|
|
|
SECTION OF THE ACT
|
|
SECTION OF INDENTURE
|
|
|
310(a)(1) and (2)
|
|
|
6.9
|
|
310(a)(3) and (4)
|
|
Inapplicable
|
|
310(b)
|
|
6.8 and 6.10(a), (b) and (d)
|
|
310(c)
|
|
Inapplicable
|
|
311(a)
|
|
|
6.14
|
|
311(b)
|
|
|
6.14
|
|
311(c)
|
|
Inapplicable
|
|
312(a)
|
|
4.1 and 4.2
|
|
312(b)
|
|
|
4.2
|
|
312(c)
|
|
|
4.2
|
|
313(a)
|
|
|
4.3
|
|
313(b)(1)
|
|
Inapplicable
|
|
313(b)(2)
|
|
|
4.3
|
|
313(c)
|
|
|
4.3, 5.11, 6.10, 6.11, 8.2 and 12.2
|
|
313(d)
|
|
|
4.3
|
|
314(a)
|
|
3.5 and 4.2
|
|
314(b)
|
|
Inapplicable
|
|
314(c)(1) and (2)
|
|
|
11.5
|
|
314(c)(3)
|
|
Inapplicable
|
|
314(d)
|
|
Inapplicable
|
|
314(e)
|
|
|
11.5
|
|
314(f)
|
|
Inapplicable
|
|
315(a), (c) and (d)
|
|
|
6.1
|
|
315(b)
|
|
|
5.11
|
|
315(e)
|
|
|
5.12
|
|
316(a)(1)
|
|
5.9 and 5.10
|
|
316(a)(2)
|
|
Not required
|
|
316(a) (last sentence)
|
|
|
7.4
|
|
316(b)
|
|
|
5.7
|
|
317(a)
|
|
|
5.2
|
|
317(b)
|
|
3.4(a) and (b)
|
|
318(a)
|
|
|
11.7
|
|
|
|
|
|
*
|
|
This Cross Reference Sheet is not part of the Indenture.
|
2
TABLE OF CONTENTS
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PAGE
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ARTICLE I DEFINITIONS
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SECTION 1.1
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CERTAIN TERMS DEFINED
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1
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ARTICLE II SECURITIES
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SECTION 2.1
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FORMS GENERALLY
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7
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SECTION 2.2
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FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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7
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SECTION 2.3
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AMOUNT UNLIMITED; ISSUABLE IN SERIES
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8
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SECTION 2.4
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AUTHENTICATION AND DELIVERY OF SECURITIES
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10
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SECTION 2.5
|
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EXECUTION OF SECURITIES
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13
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SECTION 2.6
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CERTIFICATE OF AUTHENTICATION
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|
13
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|
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|
SECTION 2.7
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DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST
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13
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|
SECTION 2.8
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REGISTRATION, TRANSFER AND EXCHANGE
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14
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SECTION 2.9
|
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MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES
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|
18
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|
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|
SECTION 2.10
|
|
CANCELLATION OF SECURITIES; DISPOSAL THEREOF
|
|
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19
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SECTION 2.11
|
|
TEMPORARY SECURITIES
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19
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|
SECTION 2.12
|
|
CUSIP NUMBERS
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19
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ARTICLE III COVENANTS OF THE ISSUER
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SECTION 3.1
|
|
PAYMENT OF PRINCIPAL AND INTEREST
|
|
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20
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|
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|
|
SECTION 3.2
|
|
OFFICES FOR PAYMENTS, ETC
|
|
|
20
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|
|
|
|
SECTION 3.3
|
|
APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE
|
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21
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|
SECTION 3.4
|
|
PAYING AGENTS
|
|
|
21
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|
|
SECTION 3.5
|
|
COMPLIANCE CERTIFICATES
|
|
|
22
|
|
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|
|
SECTION 3.6
|
|
CORPORATE EXISTENCE
|
|
|
22
|
|
|
|
|
SECTION 3.7
|
|
LUXEMBOURG PUBLICATIONS
|
|
|
23
|
|
|
|
|
SECTION 3.8
|
|
CALCULATION OF ORIGINAL ISSUE DISCOUNT
|
|
|
23
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|
ARTICLE IV SECURITYHOLDER LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
|
|
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|
|
SECTION 4.1
|
|
ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS
|
|
|
23
|
|
|
|
|
SECTION 4.2
|
|
REPORTS BY THE ISSUER
|
|
|
23
|
|
|
|
|
SECTION 4.3
|
|
REPORTS BY THE TRUSTEE
|
|
|
24
|
|
i
|
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|
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|
PAGE
|
|
|
|
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ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
|
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|
|
SECTION 5.1
|
|
EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT
|
|
|
24
|
|
|
|
|
SECTION 5.2
|
|
COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT
|
|
|
28
|
|
|
|
|
SECTION 5.3
|
|
APPLICATION OF PROCEEDS
|
|
|
29
|
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|
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|
SECTION 5.4
|
|
SUITS FOR ENFORCEMENT
|
|
|
31
|
|
|
|
|
SECTION 5.5
|
|
RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS
|
|
|
31
|
|
|
|
|
SECTION 5.6
|
|
LIMITATIONS ON SUITS BY SECURITY HOLDERS
|
|
|
31
|
|
|
|
|
SECTION 5.7
|
|
UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS
|
|
|
31
|
|
|
|
|
SECTION 5.8
|
|
POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT
|
|
|
32
|
|
|
|
|
SECTION 5.9
|
|
CONTROL BY HOLDERS OF SECURITIES
|
|
|
32
|
|
|
|
|
SECTION 5.10
|
|
WAIVER OF PAST DEFAULTS
|
|
|
32
|
|
|
|
|
SECTION 5.11
|
|
TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES
|
|
|
33
|
|
|
|
|
SECTION 5.12
|
|
RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS
|
|
|
33
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VI CONCERNING THE TRUSTEE
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 6.1
|
|
DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT
|
|
|
34
|
|
|
|
|
SECTION 6.2
|
|
CERTAIN RIGHTS OF THE TRUSTEE
|
|
|
35
|
|
|
|
|
SECTION 6.3
|
|
TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS THEREOF
|
|
|
36
|
|
|
|
|
SECTION 6.4
|
|
TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC.
|
|
|
36
|
|
|
|
|
SECTION 6.5
|
|
MONEYS HELD BY TRUSTEE
|
|
|
37
|
|
|
|
|
SECTION 6.6
|
|
COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM
|
|
|
37
|
|
|
|
|
SECTION 6.7
|
|
RIGHT OF TRUSTEE TO RELY ON OFFICER'S CERTIFICATE, ETC.
|
|
|
37
|
|
|
|
|
SECTION 6.8
|
|
INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE
|
|
|
38
|
|
|
|
|
SECTION 6.9
|
|
QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS
|
|
|
38
|
|
|
|
|
SECTION 6.10
|
|
PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE
|
|
|
38
|
|
|
|
|
SECTION 6.11
|
|
RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE
|
|
|
38
|
|
|
|
|
SECTION 6.12
|
|
ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE
|
|
|
40
|
|
ii
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PAGE
|
|
|
|
|
SECTION 6.13
|
|
MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE
|
|
|
41
|
|
|
|
|
SECTION 6.14
|
|
PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER
|
|
|
41
|
|
|
|
|
SECTION 6.15
|
|
APPOINTMENT OF AUTHENTICATING AGENT
|
|
|
42
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VII CONCERNING THE SECURITYHOLDERS
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
SECTION 7.1
|
|
EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS
|
|
|
43
|
|
|
|
|
SECTION 7.2
|
|
PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES
|
|
|
43
|
|
|
|
|
SECTION 7.3
|
|
HOLDERS TO BE TREATED AS OWNERS
|
|
|
43
|
|
|
|
|
SECTION 7.4
|
|
SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING
|
|
|
43
|
|
|
|
|
SECTION 7.5
|
|
RIGHT OF REVOCATION OF ACTION TAKEN
|
|
|
44
|
|
|
|
|
|
|
|
|
|
|
|
|
ARTICLE VIII SUPPLEMENTAL INDENTURES
|
|
|
|
|
|
|
|
|
|
|
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SECTION 8.1
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SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS
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44
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SECTION 8.2
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SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS
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45
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SECTION 8.3
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EFFECT OF SUPPLEMENTAL INDENTURE
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47
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SECTION 8.4
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DOCUMENTS TO BE GIVEN TO TRUSTEE
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48
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SECTION 8.5
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NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES
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48
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ARTICLE IX CONSOLIDATION, MERGER, SALE OR CONVEYANCE
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SECTION 9.1
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ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
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48
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SECTION 9.2
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SUCCESSOR CORPORATION SUBSTITUTED
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48
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SECTION 9.3
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OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE
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49
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ARTICLE X SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
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SECTION 10.1
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SATISFACTION AND DISCHARGE OF INDENTURE
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49
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SECTION 10.2
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APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
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52
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SECTION 10.3
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REPAYMENT OF MONEYS HELD BY PAYING AGENT
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52
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SECTION 10.4
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RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS
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53
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SECTION 10.5
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INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS
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53
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SECTION 10.6
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EFFECT ON SUBORDINATION PROVISIONS
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53
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iii
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PAGE
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ARTICLE XI MISCELLANEOUS PROVISIONS
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SECTION 11.1
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INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM INDIVIDUAL LIABILITY
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54
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SECTION 11.2
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PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES AND COUPONS
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54
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SECTION 11.3
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SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE
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54
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SECTION 11.4
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NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS
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54
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SECTION 11.5
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OFFICER'S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED THEREIN
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55
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SECTION 11.6
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PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS
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56
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SECTION 11.7
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CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
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56
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SECTION 11.8
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NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL
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57
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SECTION 11.9
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COUNTERPARTS
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57
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SECTION 11.10
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EFFECT OF HEADINGS
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57
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SECTION 11.11
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SECURITIES IN A FOREIGN CURRENCY
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57
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SECTION 11.12
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JUDGMENT CURRENCY
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58
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SECTION 11.13
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AGREEMENT TO SUBORDINATE
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58
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SECTION 11.14
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FORCE MAJEURE
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58
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ARTICLE XII REDEMPTION OF SECURITIES AND SINKING FUNDS
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SECTION 12.1
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APPLICABILITY OF ARTICLE
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59
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SECTION 12.2
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NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS
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59
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SECTION 12.3
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PAYMENT OF SECURITIES CALLED FOR REDEMPTION
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60
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SECTION 12.4
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EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION
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61
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SECTION 12.5
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MANDATORY AND OPTIONAL SINKING FUNDS
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61
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iv
THIS
INDENTURE, dated as of March 5, 2007, by and between MCKESSON CORPORATION, a
Delaware corporation (the “Issuer”), and THE BANK OF NEW YORK TRUST COMPANY, N.A., a national
banking association, as trustee (the “Trustee”),
WITNESSETH:
WHEREAS, the Issuer has duly authorized the issue from time to time of its unsecured
debentures, notes or other evidences of indebtedness to be issued in one or more series (the
“Securities”) up to such principal amount or amounts as may from time to time be authorized in
accordance with the terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and delivery of this Indenture to
provide, among other things, for the authentication, delivery and administration of the Securities;
and
WHEREAS, all things necessary to make this Indenture a valid and legally binding indenture and
agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the Securities by the holders thereof,
the Issuer and the Trustee mutually covenant and agree for the equal and proportionate benefit of
the respective holders from time to time of the Securities and of the coupons, if any, appertaining
thereto as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 CERTAIN TERMS DEFINED.
The following terms (except as otherwise expressly provided or unless the context otherwise
clearly requires) for all purposes of this Indenture and of any indenture supplemental hereto shall
have the respective meanings specified in this Section. All other terms used in this Indenture
that are defined in the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”), or the
definitions of which in the Securities Act of 1933, as amended (the “Securities Act”), are referred
to in the Trust Indenture Act, including terms defined therein by reference to the Securities Act
(except as herein otherwise expressly provided or unless the context otherwise requires), shall
have the meaning assigned to such terms in the Trust Indenture Act and in the Securities Act as in
effect from time to time. All accounting terms used herein and not expressly defined shall have
the meanings assigned to such terms in accordance with generally accepted accounting principles,
and the term “generally accepted accounting principles” means such accounting principles as are
generally accepted at the time of any computation unless a different time shall be specified with
respect to such series of Securities as provided for in Section 2.3. The words “herein,” “hereof”
and “hereunder” and other words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision. The terms defined in this Article have the
meanings assigned to them in this Article and include the plural as well as the singular.
1
“Affiliate” has the same meaning as given to that term in Rule 405 of the Securities Act or
any successor provision.
“Authenticating Agent” shall have the meaning set forth in Section 6.15.
“Authorized Newspaper” means a newspaper (which, in the case of The City of New York, will, if
practicable, be
The Wall Street Journal
(Eastern Edition), in the case of the United Kingdom of
Great Britain and Northern Ireland (the “United Kingdom”), will, if practicable, be
The Financial
Times
(London Edition) and, in the case of the Grand Duchy of Luxembourg (“Luxembourg”), will, if
practicable, be the
Luxemburger Wort
) published in an official or common language of the country of
publication customarily published at least once a day for at least five days in each calendar week
and of general circulation in The City of New York, the United Kingdom or Luxembourg, as
applicable. If it shall be impractical in the opinion of the Trustee to make any publication of
any notice required hereby in an Authorized Newspaper, any publication or other notice in lieu
thereof which is made or given with the approval of the Trustee shall constitute a sufficient
publication of such notice.
“Board of Directors” means either the Board of Directors of the Issuer or any committee of
such Board duly authorized to act on its behalf.
“Board Resolution” means a copy of one or more resolutions, certified by the secretary or an
assistant secretary of the Issuer to have been duly adopted or consented to by the Board of
Directors and to be in full force and effect, and delivered to the Trustee.
“Business Day” means, with respect to any Security, a day that is not a day on which banking
institutions in the city (or in any of the cities, if more than one) in which amounts are payable,
as specified in the form of such Security, are authorized or required by any applicable law or
regulation to be closed.
“Capital Stock” means, with respect to any corporation, any and all shares, interests, rights
to purchase (other than convertible or exchangeable indebtedness that is not itself otherwise
capital stock), warrants, options, participations or other equivalents of or interests (however
designated) in stock issued by that corporation.
“Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or if at any time after the execution and delivery of this
Indenture such Commission is not existing and performing the duties now assigned to it under the
Trust Indenture Act, then the body performing such duties on such date.
“Corporate Trust Office” means the office of the Trustee at which the corporate trust business
of the Trustee shall, at any particular time, be principally administered, which office is, as of
the date of this Indenture, located at 700 S. Flower Street, Suite 500, Los Angeles, California
90017, Attention: Corporate Trust Administration.
“Coupon” means any interest coupon appertaining to an Unregistered Security.
“Covenant Defeasance” shall have the meaning set forth in Section 10.1(C).
2
“Depositary” means, with respect to the Securities of any series issuable or issued in the
form of one or more Registered Global Securities, the Person designated as Depositary by the Issuer
pursuant to Section 2.3 until a successor Depositary shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Depositary” shall mean or include each
Person who is then a Depositary hereunder, and if at any time there is more than one such Person,
“Depositary” as used with respect to the Securities of any such series shall mean the Depositary
with respect to the Registered Global Securities of that series.
“Dollar” or “$” means the coin or currency of the United States of America as at the time of
payment is legal tender for the payment of public and private debts.
“Equity Interests” means Capital Stock or partnership, participation or membership interests
and all warrants, options or other rights to acquire Capital Stock or partnership, participation or
membership interests (but excluding any debt security that is convertible into, or exchangeable
for, Capital Stock or partnership, participation or membership interests).
“Event of Default” means any event or condition specified as such in Section 5.1.
“Exchange Act” means the Securities Exchange Act of 1934, as amended.
“Fair Value” when used with respect to any Voting Equity Interests of the Issuer means the
fair value as determined in good faith by the Board of Directors of the Issuer.
“Foreign Currency” means any coin, currency, currency unit or composite currency, including,
without limitation, the euro, issued by the government of one or more countries, other than the
United States of America or by any internationally recognized union, confederation or association
of such governments.
“Holder,” “Holder of Securities,” “Securityholder” or any other similar terms mean (a) in the
case of any Registered Security, the person in whose name such Security is registered in the
security register kept by the Issuer for that purpose in accordance with the terms hereof, and (b)
in the case of any Unregistered Security, the bearer of such Security, or any Coupon appertaining
thereto, as the case may be.
“Indenture” means this instrument as originally executed and delivered or, if amended or
supplemented as herein provided, as so amended or supplemented or both, and shall include the forms
and terms of particular series of Securities established as contemplated hereunder,
provided
, that,
if at any time more than one Person is acting as Trustee under this instrument, “Indenture” shall
mean, with respect to one or more series of Securities for which such person is trustee, this
instrument as originally executed and delivered or, if amended or supplemented as herein provided,
as so amended or supplemented or both, and shall include the forms and terms of those particular
series of Securities for which such Person is Trustee established as contemplated hereunder,
exclusive, however, of any provisions or terms which relate solely to other series of Securities
for which such person is not Trustee, regardless of when such terms or provisions were adopted.
3
“IRS” means the Internal Revenue Service of the United States Department of the Treasury, or
any successor entity.
“Issuer” means (except as otherwise provided in Article IX) McKesson Corporation, a Delaware
corporation, and, subject to Article IX, its successors and assigns.
“Issuer Order” means a written statement, request or order of the Issuer signed in its name by
the chairman of the Board of Directors, the president, any vice president or the treasurer of the
Issuer.
“Judgment Currency” has the meaning set forth in Section 11.12.
“Non-U.S. Person” means any person that is not a “U.S. person” as such term is defined in Rule
902 of the Securities Act.
“Officer’s Certificate” means a certificate signed by the chairman of the Board of Directors,
the president or any vice president or the treasurer of the Issuer and delivered to the Trustee.
Each such certificate shall comply with Section 314 of the Trust Indenture Act and include the
statements provided for in Section 11.5.
“Opinion of Counsel” means an opinion in writing signed by legal counsel who may be an
employee of the Issuer. Each such opinion shall comply with Section 314 of the Trust Indenture Act
and include the statements provided for in Section 11.5.
“Original Issue Date” of any Security (or portion thereof) means the earlier of (a) the date
of such Security or (b) the date of any Security (or portion thereof) for which such Security was
issued (directly or indirectly) on registration of transfer, exchange or substitution.
“Original Issue Discount Security” means any Security that provides for an amount less than
the principal amount thereof to be due and payable upon a declaration of acceleration of the
maturity thereof pursuant to Section 5.1.
“Outstanding” (except as otherwise provided in Section 7.4), when used with reference to
Securities, means, subject to the provisions of Section 7.4, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture, except:
(a) Securities theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(b) Securities, or portions thereof, for the payment or redemption of which moneys or
U.S. Government Obligations (as provided for in Section 10.1) in the necessary amount shall
have been deposited in trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by the Issuer for the
Holders of such Securities (if the Issuer shall act as its own paying agent), provided, that
if such Securities, or portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or provisions
satisfactory to the Trustee shall have been made for giving such notice; and
4
(c) Securities which shall have been paid or in substitution for which other Securities
shall have been authenticated and delivered pursuant to the terms of Section 2.9 (except
with respect to any such Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is a legal, valid and
binding obligation of the Issuer).
In determining whether the Holders of the requisite principal amount of Outstanding Securities
of any or all series have given any request, demand, authorization, direction, notice, consent or
waiver hereunder, the principal amount of an Original Issue Discount Security that shall be deemed
to be Outstanding for such purposes shall be the amount of the principal thereof that would be due
and payable as of the date of such determination upon a declaration of acceleration of the maturity
thereof pursuant to Section 5.1.
“Periodic Offering” means an offering of Securities of a series from time to time, the
specific terms of which Securities, including, without limitation, the rate or rates of interest,
if any, thereon, the stated maturity or maturities thereof and the redemption provisions, if any,
with respect thereto, are to be determined by the Issuer or its agents upon the issuance of such
Securities.
“Person” means any individual, corporation, business trust, partnership, limited liability
company, joint venture, association, joint stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
“principal” whenever used with reference to the Securities or any Security or any portion
thereof, shall be deemed to include “and premium, if any,” provided, however, that such inclusion
of premium, if any, shall under no circumstances result in the double counting of such premium for
the purpose of any calculation required hereunder.
“record date” shall have the meaning set forth in Section 2.7.
“Registered Global Security” means a Security evidencing all or a part of a series of
Registered Securities, issued to the Depositary for such series in accordance with Section 2.4, and
bearing the legend prescribed in Section 2.4 and any other legend required by the Depositary for
such series.
“Registered Security” means any Security registered on the Security register of the Issuer.
“Required Currency” shall have the meaning set forth in Section 11.12.
“Responsible Officer” when used with respect to the Trustee means any vice president (whether
or not designated by numbers or words added before or after the title “Vice President”), any
assistant trust officer, any assistant vice president, any assistant treasurer, or any other
officer or assistant officer of the Trustee customarily performing functions similar to those
performed by the persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and familiarity with the
particular subject and who shall have direct responsibility for the administration of this
Indenture.
5
“Security” or “Securities” (except as otherwise provided in Section 7.4) has the meaning
stated in the first recital of this Indenture, or, as the case may be, Securities that have been
authenticated and delivered under this Indenture.
“Securities Act” means the Securities Act of 1933, as amended.
“Senior Indebtedness”, when used with respect to the Subordinated Securities of any series,
shall have the meaning established pursuant to Subsection 2.3(9) with respect to the Subordinated
Securities of such series.
“Senior Securities” means Securities other than Subordinated Securities.
“Subordinated Securities” means Securities that by the terms established pursuant to
Subsection 2.3(9) are subordinated in right of payment to Senior Indebtedness of the Issuer.
“Subordination Provisions”, when used with respect to the Subordinated Securities of any
series, shall have the meaning established pursuant to Subsection 2.3(9) with respect to the
Subordinated Securities of such series.
“Subsidiary,” with respect to any Person, means (i) a corporation a majority of whose Voting
Equity Interests is at the time, directly or indirectly, owned by such Person, by such Person and
one or more Subsidiaries of such Person or by one or more Subsidiaries of such Person, (ii) any
other Person (other than a corporation) in which such Person, one or more Subsidiaries of such
Person, or such Person and one or more Subsidiaries of such Person, directly or indirectly, at the
date of determination thereof has at least majority ownership interest, or (iii) a partnership in
which such Person or a Subsidiary of such Person is, at the time, a general partner.
“Trustee” means the Person identified as “Trustee” in the first paragraph hereof and, subject
to the provisions of Article VI, shall also include any successor trustee. “Trustee” shall also
mean or include each Person who is then a trustee hereunder, and, if at any time there is more than
one such Person, “Trustee” as used with respect to the Securities of any series shall mean the
trustee with respect to the Securities of such series.
“Unregistered Security” means any Security other than a Registered Security.
“U.S. Government Obligations” shall have the meaning set forth in Section 10.1(A).
“Voting Equity Interests” means Equity Interests which at the time are entitled to vote in the
election of, as applicable, directors, members or partners generally;
provided
, that, for the
purposes hereof, Equity Interests that carry only the right to vote conditionally on the happening
of an event shall not be considered Voting Equity Interests whether or not such event shall have
happened.
“Yield to Maturity” means the yield to maturity on a series of securities, calculated at the
time of issuance of such series, or, if applicable, at the most recent
6
redetermination of interest on such series, and calculated in accordance with accepted
financial practice.
ARTICLE II
SECURITIES
SECTION 2.1 FORMS GENERALLY.
The Securities of each series and the Coupons, if any, to be attached thereto shall be
substantially in such form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution or, to the extent
established pursuant to but not set forth in a Board Resolution, an Officer’s Certificate detailing
such establishment) or in one or more indentures supplemental hereto, in each case with such
appropriate insertions, omissions, substitutions and other variations as are required or permitted
by this Indenture and may have imprinted or otherwise reproduced thereon such legend or legends or
endorsements, not inconsistent with the provisions of this Indenture, as may be required to comply
with any law or with any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such Securities and Coupons.
The definitive Securities and Coupons, if any, shall be printed, lithographed or engraved on
steel engraved borders or may be produced in any other manner, all as determined by the officers
executing such Securities and Coupons, if any, as evidenced by their execution of such Securities
and Coupons, if any.
SECTION 2.2 FORM OF TRUSTEE’S CERTIFICATE OF AUTHENTICATION.
The Trustee’s certificate of authentication on all Securities shall be in substantially the
following form:
“This is one of the Securities referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK
TRUST COMPANY,
N.A., as Trustee
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By
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Authorized Signatory
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Dated:
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”
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|
If at any time there shall be an Authenticating Agent appointed with respect to any series of
Securities, then the Trustee’s Certificate of Authentication to be borne by the Securities of each
such series shall be substantially as follows:
“This is one of the Securities referred to in the within-mentioned Indenture.
7
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as Authenticating Agent
|
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By
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Authorized Signatory”
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SECTION 2.3 AMOUNT UNLIMITED; ISSUABLE IN SERIES.
The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. There shall be established in or pursuant
to one or more Board Resolutions (and to the extent established pursuant to but not set forth in a
Board Resolution, in an Officer’s Certificate detailing such establishment) or established in one
or more indentures supplemental hereto, prior to the initial issuance of Securities of any series,
(1) the designation of the Securities of the series, including CUSIP numbers, which
shall distinguish the Securities of the series from the Securities of all other series, and
which may be part of a series of Securities previously issued;
(2) any limit upon the aggregate principal amount of the Securities of the series that
may be authenticated and delivered under this Indenture (except for Securities authenticated
and delivered upon registration of, transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the Foreign Currency or Foreign Currencies in which the
Securities of the series are denominated;
(4) the date or dates on which the principal of the Securities of the series is payable
or the method of determination thereof;
(5) the rate or rates at which the Securities of the series shall bear interest, if
any, the date or dates from which such interest shall accrue, on which such interest shall
be payable, the terms and conditions of any deferral of interest and the additional
interest, if any, thereon, the right, if any, of the Issuer to extend the interest payment
periods and the duration of the extensions and (in the case of Registered Securities) the
date or dates on which a record shall be taken for the determination of Holders to whom
interest is payable and/or the method by which such rate or rates or date or dates shall be
determined;
(6) the place or places where and the manner in which, the principal of and any
interest on Securities of the series shall be payable, if other than as provided in Section
3.2;
(7) the right, if any, of the Issuer to redeem Securities, in whole or in part, at its
option and the period or periods within which, or the date or dates on which, the price
8
or prices at which and any terms and conditions upon which Securities of the series may be so
redeemed, pursuant to any sinking fund or otherwise;
(8) the obligation, if any, of the Issuer to redeem, purchase or repay Securities of
the series pursuant to any mandatory redemption, sinking fund or analogous provisions or at
the option of a Holder thereof and the price or prices at which and the period or periods
within which or the date or dates on which, and any terms and conditions upon which
Securities of the series shall be redeemed, purchased or repaid, in whole or in part,
pursuant to such obligation;
(9) if the Securities of such series are Subordinated Securities, the terms pursuant to
which the Securities of such series will be made subordinate in right of payment to Senior
Indebtedness and the definition of such Senior Indebtedness with respect to such series (in
the absence of an express statement to the effect that the Securities of such series are
subordinate in right of payment to all such Senior Indebtedness, the Securities of such
series shall not be subordinate to Senior Indebtedness and shall not constitute Subordinated
Securities); and, in the event that the Securities of such series are Subordinated
Securities, such Board Resolution, Officer’s Certificate or supplemental indenture, as the
case may be, establishing the terms of such series shall expressly state which articles,
sections or other provisions thereof constitute the “Subordination Provisions” with respect
to the Securities of such series;
(10) if other than denominations of $1,000 and any integral multiple thereof in the
case of Registered Securities, or $1,000 and $5,000 in the case of Unregistered Securities,
the denominations in which Securities of the series shall be issuable;
(11) the percentage of the principal amount at which the Securities will be issued,
and, if other than the principal amount thereof, the portion of the principal amount of
Securities of the series which shall be payable upon declaration of acceleration of the
maturity thereof and the terms and conditions of any acceleration;
(12) if other than the coin, currency or currencies in which the Securities of the
series are denominated, the coin, currency or currencies in which payment of the principal
of or interest on the Securities of such series shall be payable, including composite
currencies or currency units;
(13) if the principal of or interest on the Securities of the series are to be payable,
at the election of the Issuer or a Holder thereof, in a coin or currency other than that in
which the Securities are denominated, the period or periods within which, and the terms and
conditions upon which, such election may be made;
(14) if the amount of payments of principal of and interest on the Securities of the
series may be determined with reference to an index or formula based on a coin, currency,
composite currency or currency unit other than that in which the Securities of the series
are denominated, the manner in which such amounts shall be determined;
(15) whether the Securities of the series will be issuable as Registered Securities
(and if so, whether such Securities will be issuable as Registered Global
9
Securities) or
Unregistered Securities (with or without Coupons), or any combination of the foregoing, any
restrictions applicable to the offer, sale or delivery of Unregistered Securities or the
payment of interest thereon and, if other than as provided in Section 2.8, the terms upon
which Unregistered Securities of any series may be exchanged for Registered Securities of
such series and vice versa;
(16) whether and under what circumstances the Issuer will pay additional amounts on the
Securities of the series held by a person who is not a U.S. person in respect of any tax,
assessment or governmental charge withheld or deducted and, if so, whether the Issuer will
have the option to redeem the Securities of the series rather than pay such additional
amounts;
(17) if the Securities of the series are to be issuable in definitive form (whether
upon original issue or upon exchange of a temporary Security of such series) only upon
receipt of certain certificates or other documents or satisfaction of other conditions, the
form and terms of such certificates, documents or conditions;
(18) any trustees, depositaries, authenticating or paying agents, transfer agents or
registrars of any other agents with respect to the Securities of such series;
(19) any deletion from, modification of or addition to the Events of Default or
covenants with respect to the Securities of such series;
(20) if the Securities of the series are to be convertible into or exchangeable for any
other security or property of the Issuer, including, without limitation, securities of
another Person held by the Issuer or its Affiliates and, if so, the terms thereof; and
(21) any other terms of the series.
All Securities of any one series and Coupons, if any, appertaining thereto shall be
substantially identical, except in the case of Registered Securities as to denomination and except
as may otherwise be provided by or pursuant to the Board Resolution or Officer’s Certificate
referred to above or as set forth in any indenture supplemental hereto. All Securities of any one
series need not be issued at the same time and may be issued from time to time without consent of
any Holder, consistent with the terms of this Indenture, if so provided by or pursuant to such
Board Resolution, such Officer’s Certificate or in any indenture supplemental hereto.
SECTION 2.4 AUTHENTICATION AND DELIVERY OF SECURITIES.
The Issuer may deliver Securities of any series having attached thereto appropriate
Coupons, if any, executed by the Issuer to the Trustee for authentication together
with the applicable documents referred to below in this Section 2.4, and the Trustee shall
thereupon authenticate and deliver such Securities and Coupons, if any, to or upon the order of the
Issuer (contained in the Issuer Order referred to below in this Section) or pursuant to such
procedures acceptable to the Trustee and to such recipients as may be specified from time to time
by an Issuer Order. The maturity date, original issue date, interest rate and any other terms of
the Securities of such series and Coupons, if any, appertaining thereto shall be determined by or
pursuant to such Issuer Order and procedures. If provided for in such procedures, such Issuer
Order may authorize authentication and delivery pursuant to oral or electronic instructions from
the Issuer or its duly
10
authorized agent or agents, which instructions, if oral, shall be promptly
confirmed in writing. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the Trustee shall be provided
with (in the case of subparagraphs (2), (3) and (4) below only at or before the time of the first
request of the Issuer to the Trustee to authenticate Securities of such series) and (subject to
Section 6.1) shall be fully protected in conclusively relying upon, the following enumerated
documents unless and until such documents have been superseded or revoked:
(1) an Issuer Order requesting such authentication and setting forth delivery
instructions if the Securities and Coupons, if any, are not to be delivered to the Issuer,
provided
that, with respect to Securities of a series subject to a Periodic Offering, (a)
such Issuer Order may be delivered by the Issuer to the Trustee prior to the delivery to the
Trustee of such Securities for authentication and delivery, (b) the Trustee shall
authenticate and deliver Securities of such series for original issue from time to time, in
an aggregate principal amount not exceeding the aggregate principal amount established for
such series, pursuant to an Issuer Order or pursuant to procedures acceptable to the Trustee
as may be specified from time to time by an Issuer Order, (c) the maturity date or dates,
original issue date or dates, interest rate or rates and any other terms of Securities of
such series shall be determined by an Issuer Order or pursuant to such procedures and (d) if
provided for in such procedures, such Issuer Order may authorize authentication and delivery
pursuant to oral or electronic instructions from the Issuer or its duly authorized agent or
agents, which instructions, if oral, shall be promptly confirmed in writing;
(2) any Board Resolution, Officer’s Certificate and/or executed supplemental indenture
referred to in Section 2.1 and 2.3 by or pursuant to which the forms and terms of the
Securities and Coupons, if any, were established;
(3) an Officer’s Certificate setting forth the form or forms and terms of the
Securities and Coupons, if any, stating that the form or forms and terms of the Securities
and Coupons, if any, have been established pursuant to Sections 2.1 and 2.3 and comply with
this Indenture, and covering such other matters as the Trustee may reasonably request; and
(4) At the option of the Issuer, either one or more Opinions of Counsel, or a letter
addressed to the Trustee permitting it to rely on one or more Opinions of Counsel,
substantially to the effect that:
(a) the form or forms of the Securities and Coupons, if any, have been duly
authorized and established in conformity with the provisions of this Indenture;
(b) in the case of an underwritten offering, the terms of the Securities have
been duly authorized and established in conformity with the provisions of this
Indenture, and, in the case of an offering that is not underwritten, certain terms
of the Securities have been established pursuant to a Board Resolution, an Officer’s
Certificate or a supplemental indenture in accordance with this Indenture,
11
and when
such other terms as are to be established pursuant to procedures set forth in an
Issuer Order shall have been established, all such terms will have been duly
authorized by the Issuer and will have been established in conformity with the
provisions of this Indenture;
(c) such Securities and Coupons, if any, when executed by the Issuer and
authenticated by the Trustee in accordance with the provisions of this Indenture and
delivered to and duly paid for by the purchasers thereof, and subject to any
conditions specified in such Opinion of Counsel, will have been duly issued under
this Indenture, will be entitled to the benefits of this Indenture, and will be
valid and binding obligations of the Issuer, enforceable in accordance with their
respective terms except as the enforceability thereof may be limited by (i)
bankruptcy, insolvency, reorganization, liquidation, moratorium, fraudulent transfer
or similar laws affecting creditors’ rights generally, (ii) rights of acceleration,
if any, and (iii) the availability of equitable remedies may be limited by equitable
principles of general applicability and such counsel need express no opinion with
regard to the enforceability of Section 6.6 or of a judgment denominated in a
currency other than Dollars; and
(d) all conditions precedent to the issuance and authorization of the
Securities have been complied with.
In rendering such opinions, any counsel may qualify any opinions as to enforceability by
stating that such enforceability may be limited by bankruptcy, insolvency, reorganization,
liquidation, moratorium, fraudulent transfer and other similar laws affecting the rights and
remedies of creditors and is subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Any counsel may state that such
opinions are limited to matters arising under the laws of the State of New York and the General
Corporation Law of the State of Delaware. Such counsel may rely upon opinions of other counsel
(copies of which shall be delivered to the Trustee) reasonably satisfactory to the Trustee, in
which case the opinion shall state that such counsel believes he and the Trustee are entitled so to
rely. Such counsel may also state that, insofar as such opinion involves factual matters, he has
relied, to the extent he deems proper, upon certificates of officers of the Issuer and its
subsidiaries and certificates of public officials.
The Trustee shall have the right to decline to authenticate and deliver any Securities under
this section if the Trustee, being advised by counsel, determines that such action may not lawfully
be taken by the Issuer or if the Trustee in good faith by a trust committee of
Responsible Officers shall determine that such action would expose the Trustee to personal
liability to existing Holders or would affect the Trustee’s own rights, duties or immunities under
the Securities, this Indenture or otherwise.
If the Issuer shall establish pursuant to Section 2.3 that the Securities of a series are to
be issued in the form of one or more Registered Global Securities, then the Issuer shall execute
and the Trustee shall, in accordance with this Section and the Issuer Order with respect to such
series, authenticate and deliver one or more Registered Global Securities that (i) shall represent
and shall be denominated in an amount equal to the aggregate principal amount of all
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of the
Securities of such series issued and not yet cancelled, (ii) shall be registered in the name of the
Depositary for such Registered Global Security or Securities or the nominee of such Depositary,
(iii) shall be delivered by the Trustee to such Depositary or delivered or held pursuant to such
Depositary’s instructions and (iv) shall bear a legend substantially to the following effect:
“Unless and until it is exchanged in whole or in part for Securities in definitive registered form,
this Security may not be transferred except as a whole by the Depositary to the nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another nominee of the Depositary
or by the Depositary or any such nominee to a successor Depositary or a nominee of such successor
Depositary.”
Each Depositary designated pursuant to Section 2.3 must, at the time of its designation and at
all times while it serves as Depositary, be a clearing agency registered under the Exchange Act and
any other applicable statute or regulation.
SECTION 2.5 EXECUTION OF SECURITIES.
The Securities and each Coupon appertaining thereto, if any, shall be signed on behalf of
the Issuer by the chairman or vice chairman of its Board of Directors or its president, or any
executive (senior or other), a vice president or its treasurer, which may, but need not, be
attested. Such signatures may be the manual or facsimile signatures of the present or any future
such officers. The seal of the Issuer may be in the form of a facsimile thereof and may be
impressed, affixed, imprinted or otherwise reproduced on the Securities. Typographical and other
minor errors or defects in any such reproduction of the seal or any such signature shall not affect
the validity or enforceability of any Security that has been duly authenticated and delivered by
the Trustee.
In case any officer of the Issuer who shall have signed any of the Securities or Coupons, if
any, shall cease to be such officer before the Security or Coupon so signed (or the Security to
which the Coupon so signed appertains) shall be authenticated and delivered by the Trustee or
disposed of by the Issuer, such Security or Coupon nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Security or Coupon had not ceased to be such
officer of the Issuer; and any Security or Coupon may be signed on behalf of the Issuer by such
persons as, at the actual date of the execution of such Security or Coupon, shall be the proper
officers of the Issuer, although at the date of the execution and delivery of this Indenture any
such person was not such an officer.
SECTION 2.6 CERTIFICATE OF AUTHENTICATION.
Only such Securities as shall bear thereon a certificate of authentication substantially in
the form hereinbefore recited, executed by the Trustee by the manual signature of one of its
authorized signatories, shall be entitled to the benefits of this Indenture or be valid or
obligatory for any purpose. No Coupon shall be entitled to the benefits of this Indenture or shall
be valid and obligatory for any purpose until the certificate of authentication on the Security to
which such Coupon appertains shall have been duly executed by the Trustee. The execution of such
certificate by the Trustee upon any Security executed by the Issuer shall be conclusive evidence
that the Security so authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
SECTION 2.7 DENOMINATION AND DATE OF SECURITIES; PAYMENT OF INTEREST.
The Securities of each series shall be issuable as Registered
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Securities or Unregistered
Securities in denominations established as contemplated by Section 2.3 or, with respect to the
Registered Securities of any series, if not so established, in denominations of $1,000 and any
integral multiple thereof. If denominations of Unregistered Securities of any series are not so
established, such Securities shall be issuable in denominations of $1,000 and $5,000. The
Securities of each series shall be numbered, lettered or otherwise distinguished in such manner or
in accordance with such plan as the officers of the Issuer executing the same may determine with
the approval of the Trustee, as evidenced by the execution and authentication thereof.
Each Registered Security shall be dated the date of its authentication. Each Unregistered
Security shall be dated as provided in the Board Resolution referred to in Section 2.3. The
Securities of each series shall bear interest, if any, from the date, and such interest shall be
payable on the dates, established as contemplated by Section 2.3.
The person in whose name any Registered Security of any series is registered at the close of
business on any record date applicable to a particular series with respect to any interest payment
date for such series shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered Security subsequent to the
record date and prior to such interest payment date, except if and to the extent the Issuer shall
default in the payment of the interest due on such interest payment date for such series, in which
case such defaulted interest shall be paid to the persons in whose names Outstanding Registered
Securities for such series are registered at the close of business on a subsequent record date
(which shall be not less than five Business Days prior to the date of payment of such defaulted
interest) established by notice given by mail by or on behalf of the Issuer to the Holders of
Registered Securities not less than 15 days preceding such subsequent record date. The term
“record date” as used with respect to any interest payment date (except a date for payment of
defaulted interest) for the Securities of any series shall mean the date specified as such in the
terms of the Registered Securities of such series established as contemplated by Section 2.3, or,
if no such date is so established, if such interest payment date is the first day of a calendar
month, the fifteenth day of the preceding calendar month or, if such interest payment date is the
fifteenth day of a calendar month, the first day of such calendar month, whether or not such record
date is a Business Day.
SECTION 2.8 REGISTRATION, TRANSFER AND EXCHANGE.
(a) The Issuer will keep at each office or agency to be maintained for the purpose as
provided in Section 3.2 for each series of Securities a register or registers in which, subject to
such reasonable regulations as the Issuer may prescribe, it will provide for the registration of
Registered Securities of such series and the registration of transfer of Registered Securities of
such series. Such register shall be in written form in the English language or in any other form
capable of being converted into such form within a reasonable time. At all reasonable times such
register or registers shall be open for inspection by the Trustee.
Upon due presentation for registration of transfer of any Registered Security of any series at
any such office or agency to be maintained for the purpose as provided in Section 3.2, the Issuer
shall execute and the Trustee shall authenticate and deliver in the name of the transferee or
transferees a new Registered Security or Registered Securities of the same series,
14
maturity date,
interest rate and original issue date in authorized denominations for a like aggregate principal
amount.
Unregistered Securities (except for any temporary global Unregistered Securities) and Coupons
(except for Coupons attached to any temporary global Unregistered Securities) shall be transferable
by delivery.
At the option of the Holder thereof, Registered Securities of any series (other than a
Registered Global Security, except as set forth below) may be exchanged for a Registered Security
or Registered Securities of such series having authorized denominations and an equal aggregate
principal amount, upon surrender of such Registered Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with Section 3.2 and upon payment,
if the Issuer shall so require, of the charges hereinafter provided. If the Securities of any
series are issued in both registered and unregistered form, at the option of the Holder thereof,
except as otherwise specified pursuant to Section 2.3, Unregistered Securities of any series may be
exchanged for Registered Securities of such series having authorized denominations and an equal
aggregate principal amount, upon surrender of such Unregistered Securities to be exchanged at the
agency of the Issuer that shall be maintained for such purpose in accordance with Section 3.2,
with, in the case of Unregistered Securities that have Coupons attached, all unmatured Coupons and
all matured Coupons in default thereto appertaining, and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. At the option of the Holder thereof, if Unregistered
Securities of any series, maturity date, interest rate and original issue date are issued in more
than one authorized denomination, except as otherwise specified pursuant to Section 2.3, such
Unregistered Securities may be exchanged for Unregistered Securities of such series having
authorized denominations and an equal aggregate principal amount, upon surrender of such
Unregistered Securities to be exchanged at the agency of the Issuer that shall be maintained for
such purpose in accordance with Section 3.2 or as specified pursuant to Section 2.3, with, in the
case of Unregistered Securities that have Coupons attached, all unmatured Coupons and all matured
Coupons in default thereto appertaining, and upon payment, if the Issuer shall so require, of the
charges hereinafter provided. Registered Securities of any series may not be exchanged for
Unregistered Securities of such series unless (1) otherwise specified pursuant to Section 2.3 and
(2) the Issuer has delivered to the Trustee an Opinion of Counsel that (x) the Issuer has received
from the IRS a ruling or (y) since the date
hereof, there has been a change in the applicable United States Federal income tax law, in
either case to the effect that the inclusion of terms permitting Registered Securities to be
exchanged for Unregistered Securities would result in no United States Federal income tax effect
adverse to the Issuer or to any Holder. Whenever any Securities are so surrendered for exchange,
the Issuer shall execute, and the Trustee shall authenticate and deliver, the Securities which the
Holder making the exchange is entitled to receive. All Securities and Coupons, if any, surrendered
upon any exchange or transfer provided for in this Indenture shall be promptly cancelled and
disposed of by the Trustee in accordance with its regular procedures, and the Trustee shall deliver
a certificate of disposition thereof to the Issuer.
All Registered Securities presented for registration of transfer, exchange, redemption or
payment shall (if so required by the Issuer or the Trustee) be duly endorsed, or be accompanied by
a written instrument or instruments of transfer in form satisfactory to the Issuer and the Trustee
duly executed, by the Holder or his attorney duly authorized in writing.
15
The Issuer or the registrar may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any exchange or registration of
transfer of Securities. No service charge shall be made for any such transaction.
The Issuer shall not be required to exchange or register a transfer of (a) any Securities of
any series for a period of 15 days preceding the first mailing of notice of redemption of
Securities of such series to be redeemed or (b) any Securities selected, called or being called for
redemption, in whole or in part, except, in the case of any Security to be redeemed in part, the
portion thereof not so to be redeemed.
Notwithstanding any other provision of this Section 2.8, unless and until it is exchanged in
whole or in part for Securities in definitive registered form, a Registered Global Security
representing all or a portion of the Securities of a series may not be transferred except as a
whole by the Depositary for such series to a nominee of such Depositary or by a nominee of such
Depositary to such Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor Depositary for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered Securities of a series represented by one or
more Registered Global Securities notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for such Registered
Securities shall no longer be eligible under Section 2.4, the Issuer shall appoint a successor
Depositary eligible under Section 2.4 with respect to such Registered Securities. If a successor
Depositary eligible under Section 2.4 for such Registered Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such ineligibility, the
Issuer’s election pursuant to Section 2.3 that such Registered Securities be represented by one or
more Registered Global Securities shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer’s Certificate for the authentication and delivery of definitive
Securities of such series, will authenticate and deliver, Securities of such series in definitive
registered form without coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Global Security or Securities representing such
Registered Securities in exchange for such Registered Global Security or Securities.
The Issuer may at any time and in its sole discretion determine that the Registered Securities
of any series issued in the form of one or more Registered Global Securities shall no longer be
represented by a Registered Global Security or Securities. In such event the Issuer will execute,
and the Trustee, upon receipt of any Officer’s Certificate for the authentication and delivery of
definitive Securities of such series, will authenticate and deliver, Securities of such series in
definitive registered form without coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Global Security or Securities
representing such Registered Securities, in exchange for such Registered Global Security or
Securities.
If specified by the Issuer pursuant to Section 2.3 with respect to Securities represented by a
Registered Global Security, the Depositary for such Registered Global Security may surrender such
Registered Global Security in exchange in whole or in part for Securities of
16
the same series in definitive registered form on such terms as are acceptable to the Issuer
and such Depositary. Thereupon, the Issuer shall execute, and the Trustee shall authenticate and
deliver, without service charge,
(i) to the Person specified by such Depositary a new Registered Security or Securities
of the same series, of any authorized denominations as requested by such Person, in an
aggregate principal amount equal to and in exchange for such Person’s beneficial interest in
the Registered Global Security; and
(ii) to such Depositary a new Registered Global Security in a denomination equal to the
difference, if any, between the principal amount of the surrendered Registered Global
Security and the aggregate principal amount of Registered Securities authenticated and
delivered pursuant to clause (i) above.
Upon the exchange of a Registered Global Security for Securities in definitive registered form
without coupons, in authorized denominations, such Registered Global Security shall be cancelled by
the Trustee or an agent of the Issuer or the Trustee. Securities in definitive registered form
without coupons issued in exchange for a Registered Global Security pursuant to this Section 2.8
shall be registered in such names and in such authorized denominations as the Depositary for such
Registered Global Security, pursuant to instructions from its direct or indirect participants or
otherwise, shall instruct the Trustee or an agent of the Issuer or the Trustee. The Trustee or
such agent shall deliver such Securities to or as directed by the Persons in whose names such
Securities are so registered.
All Securities issued upon any transfer or exchange of Securities shall be valid obligations
of the Issuer, evidencing the same debt, and entitled to the same benefits under this Indenture, as
the Securities surrendered upon such transfer or exchange.
Notwithstanding anything herein or in the terms of any series of Securities to the contrary,
none of the Issuer, the Trustee or any agent of the Issuer or the Trustee (any of which, other than
the Issuer, shall conclusively rely on an Officer’s Certificate and an Opinion of Counsel) shall be
required to exchange any Unregistered Security for a Registered Security if such exchange would
result in United States Federal income tax consequences adverse to the Issuer (such as, for
example, the inability of the Issuer to deduct from its income, as computed for United States
Federal income tax purposes, the interest payable on the Unregistered Securities) under then
applicable United States Federal income tax laws. The Trustee shall have no responsibility for any
actions taken or not taken by the Depositary.
The Trustee shall have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under applicable law with respect
to any transfer of any interest in any Security (including any transfers between or among
Depositary participants or beneficial owners of interests in any Registered Global Security) other
than to require delivery of such certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the terms of, this Indenture, and to
examine the same to determine substantial compliance as to form with the express requirements
hereof.
17
SECTION 2.9 MUTILATED, DEFACED, DESTROYED, LOST AND STOLEN SECURITIES.
In case any temporary or
definitive Security or any Coupon appertaining to any Security shall be mutilated, defaced,
destroyed, lost or stolen, the Issuer in its discretion may execute and, upon the written request
of any officer of the Issuer, the Trustee shall authenticate and deliver, a new Security of the
same series, maturity date, interest rate and original issue date, bearing a number or other
distinguishing symbol not contemporaneously outstanding, in exchange and substitution for the
mutilated or defaced Security, or in lieu of and in substitution for the Security so destroyed,
lost or stolen with Coupons corresponding to the Coupons appertaining to the Securities so
mutilated, defaced, destroyed, lost or stolen, or in exchange or substitution for the Security to
which such mutilated, defaced, destroyed, lost or stolen Coupon appertained, with Coupons
appertaining thereto corresponding to the Coupons so mutilated, defaced, destroyed, lost or stolen.
In every case, the applicant for a substitute Security or Coupon shall furnish to the Issuer and
to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as may be
required by them to indemnify and defend and to save each of them harmless and, in every case of
destruction, loss or theft, evidence to their satisfaction of the destruction, loss or theft of
such Security or Coupon and of the ownership thereof, and in the case of mutilation or defacement
shall surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the Issuer or the registrar may
require the payment of a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto and any other expenses (including the fees and expenses of the Trustee)
or its agent connected therewith. In case any Security or Coupon which has matured or is about to
mature or has been called for redemption in full shall become mutilated or defaced or be destroyed,
lost or stolen, the Issuer may, instead of issuing a substitute Security, pay or authorize the
payment of the same or the relevant Coupon (without surrender thereof except in the case of a
mutilated or defaced Security or Coupon), if the applicant for such payment shall furnish to the
Issuer and to the Trustee and any agent of the Issuer or the Trustee such security or indemnity as
any of them may require to save each of them harmless, and, in every case of destruction, loss or
theft, the applicant shall also furnish to the Issuer and the Trustee and any agent of the Issuer
or the Trustee evidence to their satisfaction of the destruction, loss or theft of such Security or
Coupons and of the ownership thereof.
Every substitute Security or Coupon of any series issued pursuant to the provisions of this
Section by virtue of the fact that any such Security or Coupon is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Issuer, whether or not the destroyed, lost
or stolen Security or Coupon shall be at any time enforceable by anyone and shall be entitled to
all the benefits of (but shall be subject to all the limitations of rights set forth in) this
Indenture equally and proportionately with any and all other Securities or Coupons of such series
duly authenticated and delivered hereunder. All Securities and Coupons shall be held and owned
upon the express condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or destroyed, lost or
stolen Securities and Coupons and shall preclude any and all other rights or remedies
notwithstanding any law or statute existing or hereafter enacted to the contrary with respect to
the replacement or payment of negotiable instruments or other securities without their surrender.
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SECTION 2.10 CANCELLATION OF SECURITIES; DISPOSAL THEREOF.
All Securities and Coupons surrendered for
payment, redemption, registration of transfer or exchange, or for credit against any payment in
respect of a sinking or analogous fund, if any, if surrendered to the Issuer or any agent of the
Issuer or the Trustee or any agent of the Trustee, shall be delivered to the Trustee or its agent
for cancellation or, if surrendered to the Trustee, shall be cancelled by it; and no Securities or
Coupons shall be issued in lieu thereof except as expressly permitted by any of the provisions of
this Indenture. The Trustee or its agent shall dispose of cancelled Securities and Coupons held by
it in accordance with its regular procedures and deliver a certificate of disposition to the
Issuer. If the Issuer or its agent shall acquire any of the Securities or Coupons, such
acquisition shall not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are delivered to the Trustee or its agent for
cancellation.
SECTION 2.11 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities for any series, the
Issuer may execute and the Trustee shall authenticate and deliver temporary Securities for such
series (printed, lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be issuable as Registered
Securities without coupons, or as Unregistered Securities with or without coupons attached thereto,
of any authorized denomination, and substantially in the form of the definitive Securities of such
series but with such omissions, insertions and variations as may be appropriate for temporary
Securities, all as may be determined by the Issuer with the concurrence of the Trustee as evidenced
by the execution and authentication thereof. Temporary Securities may contain such references to
any provisions of this Indenture as may be appropriate. Every temporary Security shall be executed
by the Issuer and be authenticated by the Trustee upon the same conditions and in substantially the
same manner, and with like effect, as the definitive Securities. Without unreasonable delay the
Issuer shall execute and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor without charge at each
office or agency to be maintained by the Issuer for that purpose pursuant to Section 3.2 and, in
the case of Unregistered Securities, at any agency maintained by the Issuer for such purpose as
specified pursuant to Section 2.3, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of definitive
Securities of the same series having authorized denominations and, in the case of Unregistered
Securities, having attached thereto any appropriate Coupons. Until so exchanged, the temporary
Securities of any series shall be entitled to the same benefits under this Indenture as definitive
Securities of such series, unless otherwise established pursuant to Section 2.3. The provisions of
this Section are subject to any restrictions or limitations on the issue and delivery of temporary
Unregistered Securities of any series that may be established pursuant to Section 2.3 (including
any provision that Unregistered Securities of such series initially be issued in the form of a
single global Unregistered Security to be delivered to a depositary or agency located outside the
United States and the procedures pursuant to which definitive or global Unregistered Securities of
such series would be issued in exchange for such temporary global Unregistered Security).
SECTION 2.12 CUSIP NUMBERS
. The Issuer in issuing the Securities may use “CUSIP” numbers (if then
generally in use), and, if so, the Trustee shall use “CUSIP” numbers in notices of redemption as a
convenience to Holders;
provided
that any such notice may state that no representation is
made as to the correctness of such numbers either as printed
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on the Securities or as contained in any notice of a redemption and that reliance may be place only on the other identification numbers
printed on the Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Trustee in writing of any change in
the “CUSIP” numbers.
ARTICLE III
COVENANTS OF THE ISSUER
SECTION 3.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid the principal of, and
interest on, if any, each of the Securities of such series (together with any additional amounts
payable pursuant to the terms of such Securities) at the place or places, at the respective time or
times and in the manner provided in such Securities and in the Coupons, if any, appertaining
thereto and in this Indenture. The interest on Securities with Coupons attached (together with any
additional amounts payable pursuant to the terms of such Securities) shall be payable only upon
presentation and surrender of the several Coupons for such interest installments as are evidenced
thereby as they severally mature. If any temporary Unregistered Security provides that interest
thereon may be paid while such Security is in temporary form, the interest on any such temporary
Unregistered Security (together with any additional amounts payable pursuant to the terms of such
Security) shall be paid, as to the installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation and surrender thereof, and, as to the other installments of
interest, if any, only upon presentation of such Securities for notation thereon of the payment of
such interest, in each case subject to any restrictions that may be established pursuant to Section
2.3. The interest, if any, on Registered Securities (together with any additional amounts payable
pursuant to the terms of such Securities) shall be payable only to or upon the written order of the
Holders thereof and, at the option of the Issuer, may be paid by wire transfer or by mailing checks
for such interest payable to or upon the written order of such Holders at their last addresses as
they appear on the Securities register of the Issuer.
SECTION 3.2 OFFICES FOR PAYMENTS, ETC.
So long as any Registered Securities are authorized for issuance
pursuant to this Indenture or are outstanding hereunder, the Issuer will maintain in the Borough of
Manhattan, The City of New York, an office or agency where the Registered Securities of each series
may be presented for payment, where the Securities of each series may be presented for exchange as
is provided in this Indenture and, if applicable, pursuant to Section 2.3 and where the Registered Securities of each series may be presented for registration of transfer as in this Indenture
provided.
The Issuer will maintain one or more offices or agencies in a city or cities located outside
the United States (including any city in which such an agency is required to be maintained under
the rules of any stock exchange on which the Securities of such series are listed) where the
Unregistered Securities, if any, of each series and Coupons, if any, appertaining thereto may be
presented for payment. No payment on any Unregistered Security or Coupon will be made upon
presentation of such Unregistered Security or Coupon at an agency of the
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Issuer within the United States, nor will any payment be made by transfer to an account in, or by mail to an address in, the
United States, unless pursuant to applicable United States laws and regulations then in effect such
payment can be made without tax consequences adverse to the Issuer. Notwithstanding the foregoing,
payments in Dollars of Unregistered Securities of any series and Coupons appertaining thereto which
are payable in Dollars may be made at an agency of the Issuer maintained in the Borough of
Manhattan, The City of New York if such payment in Dollars at each agency maintained by the Issuer
outside the United States for payment on such Unregistered Securities is illegal or effectively
precluded by exchange controls or other similar restrictions.
The Issuer will maintain in the Borough of Manhattan, The City of New York, an office or
agency where notices and demands to or upon the Issuer in respect of the Securities of any series,
the Coupons appertaining thereto or this Indenture may be served.
The Issuer will give to the Trustee written notice of the location of each such office or
agency and of any change of location thereof. In case the Issuer shall fail to maintain any agency
required by this Section to be located in the Borough of Manhattan, The City of New York, or shall
fail to give such notice of the location or for any change in the location of any of the above
agencies, presentations and demands may be made and notices may be served at the designated office
of the Trustee.
The Issuer may from time to time designate one or more additional offices or agencies where
the Securities of a series and any Coupons appertaining thereto may be presented for payment, where
the Securities of that series may be presented for exchange as provided in this Indenture and
pursuant to Section 2.3 and where the Registered Securities of that series may be presented for
registration of transfer as in this Indenture provided, and the Issuer may from time to time
rescind any such designation, as the Issuer may deem desirable or expedient; provided, that no such
designation or rescission shall in any manner relieve the Issuer of its obligations to maintain the
agencies provided for in this Section. The Issuer shall give to the Trustee prompt written notice
of any such designation or rescission thereof.
SECTION 3.3 APPOINTMENT TO FILL A VACANCY IN OFFICE OF TRUSTEE.
The Issuer, whenever necessary to avoid
or fill a vacancy in the office of Trustee, will appoint, in the manner provided in Section 6.10, a
Trustee, so that there shall at all times be a Trustee with respect to each series of Securities
hereunder.
SECTION 3.4 PAYING AGENTS.
Whenever the Issuer shall appoint a paying agent other than the Trustee with
respect to the Securities of any series, it will cause such paying agent to execute and deliver to
the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section,
(a) that it will hold all sums received by it as such agent for the payment of the
principal of or interest on the Securities of such series (whether such sums have been paid
to it by the Issuer or by any other obligor on the Securities of such series) in trust for
the benefit of the Holders of the Securities of such series, or Coupons appertaining
thereto, if any, or of the Trustee;
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(b) that it will give the Trustee notice of any failure by the Issuer (or by any other
obligor on the Securities of such series) to make any payment of the principal of or
interest on the Securities of such series when the same shall be due and payable; and
(c) that it will pay any such sums so held in trust by it to the Trustee upon the
Trustee’s written request at any time during the continuance of the failure referred to in
the foregoing clause (b).
The Issuer will, on or prior to each due date of the principal of or interest on the
Securities of such series, deposit with the paying agent a sum sufficient to pay such principal or
interest so becoming due, and (unless such paying agent is the Trustee) the Issuer will promptly
notify the Trustee of any failure to take such action.
If the Issuer shall act as its own paying agent with respect to the Securities of any series,
it will, on or before each due date of the principal of or interest on the Securities of such
series, set aside, segregate and hold in trust for the benefit of the Holders of the Securities of
such series or the Coupons appertaining thereto a sum sufficient to pay such principal or interest
so becoming due. The Issuer will promptly notify the Trustee of any failure to take such action.
Anything in this Section to the contrary notwithstanding, but subject to Section 10.1, the
Issuer may at any time, for the purpose of obtaining a satisfaction and discharge with respect to
one or more or all series of Securities hereunder, or for any other reason, pay or cause to be paid
to the Trustee all sums held in trust for any such series by the Issuer or any paying agent
hereunder, as required by this Section, such sums to be held by the Trustee upon the trusts herein
contained.
Anything in this Section to the contrary notwithstanding, the agreement to hold sums in trust
as provided in this Section is subject to the provisions of Sections 10.3 and 10.4.
SECTION 3.5 COMPLIANCE CERTIFICATES.
The Issuer will furnish to the Trustee on or before January 31 in
each year (beginning with January 31, 2008) a brief certificate (which need not comply with Section
11.5) from the principal executive, financial or accounting officer of the Issuer stating that in
the course of the performance by the signer of his or her duties as an officer of the Issuer he or
she would normally have knowledge of any default or non-compliance by the Issuer in the
performance of any covenants or conditions contained in this Indenture, stating whether or not he
or she has knowledge of any such default or non-compliance (without regard to notice requirements
or grace periods) and, if so, describing each such default or non-compliance of which the signer
has knowledge and the nature thereof.
The Issuer shall deliver to the Trustee, as soon as possible and in any event within five days
after the Issuer becomes aware of the occurrence of any Event of Default or an event which, with
notice or the lapse of time or both, would constitute an Event of Default, an Officer’s Certificate
setting forth the details of such Event of Default or default and the action which the Issuer
proposes to take with respect thereto.
SECTION 3.6 CORPORATE EXISTENCE.
Subject to Article IX, the Issuer will do or cause to be done all things
necessary to preserve and keep in full force and effect its corporate existence and the rights
(charter and statutory), licenses and franchises of the Issuer
22
and its Subsidiaries;
provided
, that the Issuer shall not be required to preserve any such right, license or franchise, if, in the
judgment of the Issuer, the preservation thereof is no longer desirable in the conduct of the
business of the Issuer and its Subsidiaries taken as a whole and the loss thereof is not
disadvantageous in any material respect to the Securityholders.
SECTION 3.7 LUXEMBOURG PUBLICATIONS.
In the event of the publication of any notice pursuant to Section
5.11, 6.11, 6.12, 8.2, 10.4, 11.4 or 12.2, the party making such publication in the Borough of
Manhattan, The City of New York and London shall also, to the extent that notice is required to be
given to Holders of Securities of any series by applicable Luxembourg law or stock exchange
regulation, as evidenced by an Officer’s Certificate delivered to such party, make a similar
publication in Luxembourg.
SECTION 3.8 CALCULATION OF ORIGINAL ISSUE DISCOUNT.
The Issuer shall file with the Trustee promptly at
the end of each calendar year (i) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods) accrued on Outstanding Securities as of the end of such
year and (ii) such other specific information relating to such original issue discount as may then
be relevant under the Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IV
SECURITYHOLDER LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
SECTION 4.1 ISSUER TO FURNISH TRUSTEE INFORMATION AS TO NAMES AND ADDRESSES OF SECURITYHOLDERS.
If and so long as the Trustee shall not be the Security registrar for the Securities of any
series, the Issuer and any other obligor on the Securities will furnish or cause to be furnished to
the Trustee a list in such form as the Trustee may reasonably require of the names and addresses of
the Holders of the Registered Securities of such series pursuant to Section 312 of the Trust
Indenture Act:
(a) semi-annually not more than 5 days after each record date for the payment of
interest on such Registered Securities, as hereinabove specified, as of such record date and
on dates to be determined pursuant to Section 2.3 for non-interest bearing Registered
Securities in each year; and
(b) at such other times as the Trustee may reasonably request in writing, within thirty
days after receipt by the Issuer of any such request as of a date not more than 15 days
prior to the time such information is furnished.
SECTION 4.2 REPORTS BY THE ISSUER.
The Issuer covenants to file with the Trustee, within 15 days after
the Issuer is required to file the same with the Commission, copies of the annual reports and of
the information, documents, and other reports that the Issuer may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Exchange Act or pursuant to Section 314
of the Trust Indenture Act.
Delivery of such reports, information and documents to the Trustee is for informational
purposes only and the Trustee’s receipt of such shall not constitute constructive
23
notice of any information contained therein or determinable from information contained therein, including the
Issuer’s compliance with any covenants hereunder (as to which the Trustee is entitled to rely
exclusively on Officer’s Certificates).
SECTION 4.3 REPORTS BY THE TRUSTEE
.
(a) The Trustee shall transmit to Holders such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the Trust Indenture Act at the
times and in the manner provided pursuant thereto. If required by Section 313(a) of the
Trust Indenture Act, the Trustee shall, within sixty days after each May 15 following the
date of the initial issuance of Securities under this Indenture deliver to Holders a brief
report, dated as of such May 15, which complies with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such transmission to Holders, be
filed by the Trustee with each stock exchange, if any, upon which the Securities are listed,
with the Commission and with the Issuer. The Issuer will promptly notify the Trustee in
writing when the Securities are listed on any stock exchange and of any delisting thereof.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF
DEFAULT
SECTION 5.1 EVENT OF DEFAULT DEFINED, ACCELERATION OF MATURITY; WAIVER OF DEFAULT
. “Event of Default”
with respect to Securities of any series, wherever used herein, means any one of the following
events which shall have occurred and be continuing (whatever the reason for such Event of Default
and whether it shall be voluntary or involuntary or be effected by operation of law or pursuant to
any judgment, decree or order of any court or any order, rule or regulation of any administrative
or governmental body):
(a) default in the payment of any installment of interest upon any of the Securities of
such series as and when the same shall become due and payable, and continuance of such
default for a period of 30 days; provided that, a valid extension of an interest payment
period by the Issuer in accordance with the terms of such Securities shall not constitute a
failure to pay interest; or
(b) default in the payment of all or any part of the principal or premium (if any) on
any of the Securities of such series as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise; or
(c) default in the payment of any sinking fund installment as and when the same shall
become due and payable by the terms of the Securities of such series; or
(d) failure on the part of the Issuer duly to observe or perform any other of the
covenants or agreements on the part of the Issuer in the Securities of such series or
24
contained in this Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a period of 90
days after the date on which written notice specifying such failure, stating that such
notice is a “Notice of Default” hereunder and demanding that the Issuer remedy the same,
shall have been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee, or to the Issuer and the Trustee by the holders of at least 25% in
aggregate principal amount of the Outstanding Securities of the series to which such
covenant or agreement relates; or
(e) a court having jurisdiction in the premises shall enter a decree or order for
relief in respect of the Issuer in an involuntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or appointing a receiver,
liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Issuer
for any substantial part of its property or ordering the winding up or liquidation of its
affairs, and such decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(f) the Issuer shall commence a voluntary case under any applicable bankruptcy,
insolvency or other similar law now or hereafter in effect, or consent to the entry of an order for relief in an involuntary case under any such law, or consent to
the appointment or taking possession by a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of the Issuer or for any substantial part of its
or their property, or make any general assignment for the benefit of creditors; or
(g) any other Event of Default provided in the supplemental indenture or Board
Resolution under which such series of Securities is issued or in the form of Security for
such series.
If an Event of Default described in clause (a), (b) or (c) occurs and is continuing, then, and
in each and every such case, except for any series of Securities the principal of which shall have
already become due and payable, either the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Securities of each such affected series then Outstanding hereunder (each
such series voting as a separate class) by notice in writing to the Issuer (and to the Trustee if
given by Securityholders), may declare the entire principal (or, if the Securities of such series
are Original Issue Discount Securities, such portion of the principal amount as may be specified in
the terms of such series) of all Securities of such series, and the interest accrued thereon, if
any, to be due and payable immediately, and upon any such declaration, the same shall become
immediately due and payable.
Except as otherwise provided in the terms of any series of Senior Securities pursuant to
Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series
of the Senior Securities then Outstanding, occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Senior Securities shall have already become due and
payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount of
all of the Senior Securities then Outstanding hereunder (treated as one class) by notice in writing
to the Issuer (and to the Trustee if given by Securityholders), may declare the entire principal
(or, if the Senior Securities of any series are Original Issue Discount
25
Securities, such portion of the principal amount as may be specified in the terms of such series) of all of the Senior
Securities then Outstanding, and the interest accrued thereon, if any, to be due and payable
immediately, and upon such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (e) or (f) above occurs and is continuing, then the principal
amount of all the Senior Securities then Outstanding, and the interest accrued thereon, if any,
shall become and be immediately due and payable without any declaration or other act on the part of
the Trustee or any Holder.
Except as otherwise provided in the terms of any series of Subordinated Securities pursuant to
Section 2.3, if an Event of Default described in clause (d) or (g) above with respect to all series
of Subordinated Securities then Outstanding, occurs and is continuing, then, and in each and every
such case, unless the principal of all of the Subordinated Securities shall have already become due
and payable, either the Trustee or the Holders of not less than 25% in aggregate principal amount
of all of the Subordinated Securities then Outstanding hereunder (treated as one class) by notice
in writing to the Issuer (and to the Trustee if given by Securityholders), may declare the entire
principal (or, if the Subordinated Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms of such series) of all of the
Subordinated Securities then Outstanding, and the interest accrued thereon, if any, to be due and
payable immediately, and upon such declaration, the same shall become immediately due and payable. If an Event of Default described in clause
(e) or (f) above occurs and is continuing, then the principal amount of all of the Subordinated
Securities then Outstanding, and the interest accrued thereon, if any, shall become and be
immediately due and payable without any declaration or other act on the part of the Trustee or any
Holder.
If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of
Default is with respect to less than all series of Senior Securities then Outstanding, then, and in
each and every such case, except for any series of Senior Securities the principal of which shall
have already become due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Senior Securities of each such affected series then Outstanding
hereunder (each such series voting as a separate class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or, if the Securities
of such series are Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of such series) of all Securities of such series, and the interest
accrued thereon, if any, to be due and payable immediately, and upon any such declaration, the same
shall become immediately due and payable.
If an Event of Default described in clause (d) or (g) occurs and is continuing, which Event of
Default is with respect to less than all series of Subordinated Securities then Outstanding, then,
and in each and every such case, except for any series of Subordinated Securities the principal of
which shall have already become due and payable, either the Trustee or the Holders of not less than
25% in aggregate principal amount of the Subordinated Securities of each such affected series then
Outstanding hereunder (each such series voting as a separate class) by notice in writing to the
Issuer (and to the Trustee if given by Securityholders), may declare the entire principal (or, if
the Securities of such series are Original Issue Discount Securities, such portion of the principal
amount as may be specified in the terms of such series) of all Securities of such series, and the
interest accrued thereon, if any, to be due and payable
26
immediately, and upon any such declaration, the same shall become immediately due and payable.
The foregoing provisions are subject to the condition that if, at any time after the principal
(or, if the Securities are Original Issue Discount Securities, such portion of the principal as may
be specified in the terms thereof) of the Securities of any series (or of all the Securities, as
the case may be) shall have been so declared due and payable, and before any judgment or decree for
the payment of the moneys due shall have been obtained or entered as hereinafter provided,
(A) the Issuer shall pay or shall deposit with the Trustee a sum sufficient to pay
(i) all matured installments of interest upon all the Securities of such series
(or all the Securities, as the case may be); and
(ii) the principal of any and all Securities of such series (or of all the
Securities, as the case may be) which shall have become due otherwise than by
acceleration; and
(iii) interest upon such principal and, to the extent that payment of such
interest is enforceable under applicable law, on overdue installments of interest,
at the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in the Securities of such series (or
at the respective rates of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit; and
(iv) all amounts payable to the Trustee pursuant to Section 6.6; and
(B) all Events of Default under the Indenture, other than the non-payment of the
principal of Securities which shall have become due by acceleration, shall have been cured,
waived or otherwise remedied as provided herein,
then and in every such case the Holders of a majority in aggregate principal amount of all the
Securities of such series voting as a separate class (or of all the Securities, as the case may be,
voting as a single class), then Outstanding, by written notice to the Issuer and to the Trustee,
may waive all defaults with respect to such series (or with respect to all the Securities, as the
case may be) and rescind and annul such declaration and its consequences, but no such waiver or
rescission and annulment shall extend to or shall affect any subsequent default or shall impair any
right consequent thereon.
For all purposes under this Indenture, if a portion of the principal of any Original Issue
Discount Securities shall have been accelerated and declared due and payable pursuant to the
provisions hereof, then, from and after such declaration, unless such declaration has been
rescinded and annulled, the principal amount of such Original Issue Discount Securities shall be
deemed, for all purposes hereunder, to be such portion of the principal thereof as shall be due and
payable as a result of such acceleration, and payment of such portion of the principal thereof as
shall be due and payable as a result of such acceleration, together with interest, if any, thereon
27
and all other amounts owing thereunder, shall constitute payment in full of such Original Issue
Discount Securities.
SECTION 5.2 COLLECTION OF INDEBTEDNESS BY TRUSTEE; TRUSTEE MAY PROVE DEBT
. The Issuer covenants that (a)
in case default shall be made in the payment of any installment of interest on any of the
Securities of any series when such interest shall have become due and payable, and such default
shall have continued for a period of 30 days, or (b) in case default shall be made in the payment
of all or any part of the principal of any of the Securities of any series when the same shall have
become due and payable, whether upon maturity of the Securities of such series or upon any
redemption or by declaration or otherwise, then upon demand of the Trustee, the Issuer will pay to
the Trustee for the benefit of the Holders of the Securities of such series the whole amount that
then shall have become due and payable on all Securities of such series, and such Coupons, for
principal and interest, as the case may be (with interest to the date of such payment upon the
overdue principal and, to the extent that payment of such interest is enforceable under applicable
law, on overdue installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to cover the costs and expenses of collection, and such other amount
due the Trustee under Section 6.6 in respect of Securities of such series.
Until such demand is made by the Trustee, the Issuer may pay the principal of and interest on
the Securities of any series to the registered Holders, whether or not the Securities of such
series be overdue.
In case the Issuer shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name as trustee of an express trust, shall be entitled and empowered to institute any
action or proceedings at law or in equity for the collection of the sums so due and unpaid, and may
prosecute any such action or proceedings to judgment or final decree, and may enforce any such
judgment or final decree against the Issuer or other obligor upon the Securities and collect in the
manner provided by law out of the property of the Issuer or other obligor upon the Securities,
wherever situated, all the moneys adjudged or decreed to be payable.
In case there shall be pending proceedings relative to the Issuer or any other obligor upon
the Securities under Title 11 of the United States Code or any other applicable Federal or state
bankruptcy, insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official shall have been
appointed for or taken possession of the Issuer or its property or such other obligor, or in case
of any other comparable judicial proceedings relative to the Issuer or other obligor upon the
Securities, or to the creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section, shall be entitled and empowered, by
intervention in such proceedings or otherwise:
(a) to file and prove a claim or claims for the whole amount of principal and interest
(or, if the Securities of any series are Original Issue Discount Securities, such portion of
the principal amount as may be specified in the terms of such series) owing
28
and unpaid in respect of the Securities of any series, and to file such other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee (including any claim
for amounts payable to the Trustee under Section 6.6) and of the Securityholders allowed in
any judicial proceedings relative to the Issuer or other obligor upon the Securities, or to
the creditors or property of the Issuer or such other obligor; and
(b) unless prohibited by applicable law and regulations, to vote on behalf of the
holders of the Securities of any series in any election of a receiver, assignee, trustee or
a standby trustee in arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings, custodian or other person performing similar functions in respect of
any such proceedings; and
(c) to collect and receive any moneys or other property payable or deliverable on any
such claims, and to distribute all amounts received with respect to the claims of the
Securityholders and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official performing similar functions in respect of
any such proceedings is hereby authorized by each of the Securityholders to make payments to the Trustee, and, in the event that the Trustee shall consent to the making
of payments directly to the Securityholders, to pay to the Trustee its costs and expenses of
collection and all other amounts due to it pursuant to Section 6.6.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to
or vote for or accept or adopt on behalf of any Securityholder any plan of reorganization,
arrangement, adjustment or composition affecting the Securities of any series or the rights of any
Holder thereof, or to authorize the Trustee to vote in respect of the claim of any Securityholder
in any such proceeding, except as aforesaid in clause (b).
All rights of action and of asserting claims under this Indenture, or under any of the
Securities of any series or Coupons appertaining to such Securities, may be enforced by the Trustee
without the possession of any of the Securities of such series or Coupons appertaining to such
Securities or the production thereof in any trial or other proceedings relative thereto, and any
such action or proceedings instituted by the Trustee shall be brought in its own name as trustee of
an express trust, and any recovery of judgment shall be awarded to the Trustee for ratable
distribution to the Holders of the Securities or Coupons appertaining to such Securities in respect
of which such action was taken, after payment of all sums due to the Trustee under Section 6.6 in
respect of such Securities.
In any proceedings brought by the Trustee (and also any proceedings involving the
interpretation of any provision of this Indenture to which the Trustee shall be a party) the
Trustee shall be held to represent all the Holders of the Securities or Coupons appertaining to
such Securities in respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities parties to any such
proceedings.
SECTION 5.3 APPLICATION OF PROCEEDS
. Any moneys collected by the Trustee pursuant to this Article in
respect of any series shall be applied in the following order at the date or dates fixed by the
Trustee and, in case of the distribution of such moneys on
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account of principal or interest, upon presentation of the several Securities and Coupons appertaining to such Securities in respect of
which monies have been collected and stamping (or otherwise noting) thereon the payment, or issuing
Securities of such series in reduced principal amounts in exchange for the presented Securities of
like series if only partially paid, or upon surrender thereof if fully paid:
FIRST: To the payment of costs and expenses applicable to such series of
Securities in respect of which monies have been collected, including all amounts due
to the Trustee and each predecessor Trustee pursuant to Section 6.6 in respect to
such series of Securities;
SECOND: If the Securities of such series are Subordinated Securities, to the
payment of amounts then due and unpaid to the holders of Senior Indebtedness with
respect to such series, to the extent required pursuant to the Subordination
Provisions established with respect to the Securities of such series pursuant to
Section 2.3(9).
THIRD: In case the principal of the Securities of such series in respect of
which moneys have been collected shall not have become and be then due and payable,
to the payment of interest on the Securities of such series in default in the order
of the maturity of the installments on such interest, with interest (to the extent
that such interest has been collected by the Trustee and is permitted by applicable
law) upon the overdue installments of interest at the same rate as the rate of
interest or Yield to Maturity (in the case of Original Issue Discount Securities)
specified in such Securities, such payments to be made ratably to the persons
entitled thereto, without discrimination or preference;
FOURTH: In case the principal of the Securities of such series in respect of
which moneys have been collected shall have become and shall be then due and
payable, to the payment of the whole amount then owing and unpaid upon all the
Securities of such series for principal and interest, with interest upon the overdue
principal, and (to the extent that such interest has been collected by the Trustee
and is permitted by applicable law) upon the overdue installations of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of Original
Issue Discount Securities) specified in the Securities of such series; and in case
such moneys shall be insufficient to pay in full the whole amount so due and unpaid
upon the Securities of such series, then to the payment of such principal and
interest or Yield to Maturity, without preference or priority of principal over
interest or Yield to Maturity, or of interest or Yield to Maturity over principal,
or of any installment of interest over any other installment of interest or of any
Security of such series over any other Security of such series, ratably to the
aggregate of such principal and accrued and unpaid interest or Yield to Maturity;
and
FIFTH: To the payment of the remainder, if any, to the Issuer or to such party
as a court of competent jurisdiction shall direct.
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SECTION 5.4 SUITS FOR ENFORCEMENT
. In case an Event of Default has occurred, has not been waived and
is continuing, the Trustee may in its discretion proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as the Trustee shall deem most
effectual to protect and enforce any of such rights, either at law or in equity or in bankruptcy or
otherwise, whether for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture or to enforce any other
legal or equitable right vested in the Trustee by this Indenture or by law.
SECTION 5.5 RESTORATION OF RIGHTS ON ABANDONMENT OF PROCEEDINGS
. In case the Trustee shall have proceeded
to enforce any right under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the Trustee, then and in every
such case the Issuer and the Trustee shall be restored respectively to their former positions and
rights hereunder, and all rights, remedies and powers of the Issuer, the Trustee and the
Securityholders shall continue as though no such proceedings had been taken.
SECTION 5.6 LIMITATIONS ON SUITS BY SECURITY HOLDERS
. No Holder of any Security of any series or of any
Coupon appertaining thereto shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in bankruptcy or otherwise
upon or under or with respect to this Indenture or such Security, or for the appointment of a
trustee, receiver, liquidator, custodian or other similar official or for any other remedy
hereunder or thereunder, unless (a) such Holder previously shall have given to a Responsible
Officer of the Trustee written notice of an Event of Default with respect to Securities of such
series and of the continuance thereof, as hereinbefore provided, and (b) the Holders of not less
than 25% in aggregate principal amount of the Securities of such affected series then Outstanding
(treated as a single class) shall have made written request upon the Trustee to institute such
action or proceedings in its own name as Trustee hereunder and shall have offered to the Trustee
reasonable security or indemnity satisfactory to it against the costs, expenses and liabilities to
be incurred therein or thereby, and (c) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity shall have failed to institute any such action or proceeding, and
(d) no direction inconsistent with such written request shall have been given to the Trustee
pursuant to Section 5.9; it being understood and intended, and being expressly covenanted by the
taker and Holder of every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertaining to such Securities
shall have any right in any manner whatever by virtue or by availing of any provision of this
Indenture or any Security to affect, disturb or prejudice the rights of any other such taker or
Holder of Securities or Coupons appertaining to such Securities, or to obtain or seek to obtain
priority over or preference to any other such taker or Holder or to enforce any right under this
Indenture or any Security, except in the manner herein provided and for the equal, ratable and
common benefit of all Holders of Securities of the applicable series and Coupons appertaining to
such Securities. For the protection and enforcement of the provisions of this Section, each and every Securityholder
and the Trustee shall be entitled to such relief as can be given either at law or in equity.
SECTION 5.7 UNCONDITIONAL RIGHT OF SECURITYHOLDERS TO INSTITUTE CERTAIN SUITS
. Notwithstanding any other
provision in this Indenture and
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any provision of any Security, the right of any Holder of any Security or Coupon to receive payment of the principal of and interest on such Security or Coupon
on or after the respective due dates expressed in such Security or Coupon or the applicable
redemption dates provided for in such Security, or to institute suit for the enforcement of any
such payment on or after such respective dates, shall not be impaired or affected without the
consent of such Holder.
SECTION 5.8 POWERS AND REMEDIES CUMULATIVE; DELAY OR OMISSION NOT WAIVER OF DEFAULT
. Except as provided
in Section 5.6, no right or remedy herein conferred upon or reserved to the Trustee or to the
Holders of Securities or Coupons is intended to be exclusive of any other right or remedy, and
every right and remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law or in equity or
otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not
prevent the concurrent assertion or employment of any other appropriate right or remedy.
No delay or omission of the Trustee or of any Holder of Securities or Coupons to exercise any
right or power accruing upon any Event of Default occurring and continuing as aforesaid shall
impair any such right or power or shall be construed to be a waiver of any such Event of Default or
an acquiescence therein. Every power and remedy given by this Indenture, any Security or law to
the Trustee or to the Holders of Securities or Coupons may be exercised from time to time, and as
often as shall be deemed expedient, by the Trustee or, subject to Section 5.6, by the Holders of
Securities or Coupons.
SECTION 5.9 CONTROL BY HOLDERS OF SECURITIES
. The Holders of a majority in aggregate principal amount of
the Securities of each series affected (with each such series voting as a separate class) at the
time Outstanding shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series by this Indenture; provided, that such
direction shall not be otherwise than in accordance with law and the provisions of this Indenture;
and provided, further, that (subject to the provisions of Section 6.1) the Trustee shall have the
right to decline to follow any such direction if (a) the Trustee, being advised by counsel, shall
determine that the action or proceeding so directed may not lawfully be taken; or (b) if the
Trustee by its trust committee of directors or Responsible Officers of the Trustee shall determine
in good faith that the action or proceedings so directed would involve the Trustee in personal
liability; or (c) if the Trustee in good faith shall so determine that the actions or forbearances
specified in or pursuant to such direction would be unduly prejudicial to the interests of Holders
of the Securities of all affected series not joining in the giving of said direction, it being understood that (subject
to Section 6.1) the Trustee shall have no duty to ascertain whether or not such actions or
forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the Trustee in its discretion to take any
action deemed proper by the Trustee and which is not inconsistent with such direction or directions
by Securityholders.
SECTION 5.10 WAIVER OF PAST DEFAULTS
. Prior to the declaration of acceleration of the maturity of the
Securities of any series as provided in Section 5.1, the Holders
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of a majority in aggregate principal amount of the Securities of such series at the time Outstanding (voting as a single
class) may on behalf of the Holders of all such Securities waive any past default or Event of
Default described in Section 5.1 and its consequences, except a default in respect of a covenant or
provision hereof which cannot be modified or amended without the consent of the Holder of each
Security affected. In the case of any such waiver, the Issuer, the Trustee and the Holders of all
such Securities shall be restored to their former positions and rights hereunder, respectively, and
such default shall cease to exist, and any Event of Default arising therefrom shall be deemed to
have been cured for every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.11 TRUSTEE TO GIVE NOTICE OF DEFAULT, BUT MAY WITHHOLD IN CERTAIN CIRCUMSTANCES
. The Trustee
shall, within ninety days after the occurrence of a default with respect to the Securities of any
series, give notice of all defaults with respect to that series known to the Trustee (i) if any
Unregistered Securities of that series are then Outstanding, to the Holders thereof, by publication
at least once in an Authorized Newspaper in the Borough of Manhattan, The City of New York and at
least once in an Authorized Newspaper in London (and, if required by Section 3.7, at least once in
an Authorized Newspaper in Luxembourg) and (ii) to all Holders of Securities of such series in the
manner and to the extent provided in Section 313(c) of the Trust Indenture Act, unless in each case
such defaults shall have been cured before the mailing or publication of such notice (the term
“default” for the purpose of this Section being hereby defined to mean any event or condition which
is, or with notice or lapse of time or both would become, an Event of Default); provided, that,
except in the case of default in the payment of the principal of or interest on any of the
Securities of such series, or in the payment of any sinking fund installment on such series, the
Trustee shall be protected in withholding such notice if and so long as the board of directors, the
executive committee, or a trust committee of directors or trustees and/or Responsible Officers of
the Trustee in good faith determines that the withholding of such notice is in the interests of the
Securityholders of such series.
SECTION 5.12 RIGHT OF COURT TO REQUIRE FILING OF UNDERTAKING TO PAY COSTS
. All parties to this Indenture
agree, and each Holder of any Security or Coupon by his acceptance thereof shall be deemed to have
agreed, that any court may in its discretion require, in any suit for the enforcement of any right or remedy under this Indenture or in any
suit against the Trustee for any action taken, suffered or omitted by it as Trustee, the filing by
any party litigant in such suit of an undertaking to pay the costs of such suit, and that such
court may in its discretion assess reasonable costs, including reasonable attorneys’ fees and
expenses, against any party litigant in such suit, having due regard to the merits and good faith
of the claims or defenses made by such party litigant; but the provisions of this Section shall not
apply to any suit instituted by the Trustee, to any suit instituted by any Securityholder or group
of Securityholders of any series holding in the aggregate more than 10% in aggregate principal
amount of the Securities of such series, or, in the case of any suit relating to or arising under
clause (d) or (g) of Section 5.1 (if the suit relates to Securities of more than one but less than
all series), 10% in aggregate principal amount of Securities then Outstanding and affected thereby,
or in the case of any suit relating to or arising under clause (d) or (g) (if the suit under clause
(d) or (g) relates to all the Securities then Outstanding), or (e) or (f) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
33
instituted by any Securityholder for the enforcement of the payment of the principal of or interest on any Security
on or after the due date expressed in such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
SECTION 6.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING DEFAULT; PRIOR TO DEFAULT
. Prior to the
occurrence of an Event of Default with respect to the Securities of a particular series and after
the curing or waiving of all Events of Default which may have occurred with respect to such series,
the Trustee undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture with respect to such series of Securities. In case an Event of Default with respect
to the Securities of a series has occurred and has not been cured or waived, the Trustee shall
exercise with respect to such series of Securities such of the rights and powers vested in it by
this Indenture with respect to such series of Securities, and use the same degree of care and skill
in their exercise, as a prudent person would exercise or use under the circumstances in the conduct
of his or her own affairs.
No provision of this Indenture shall be construed to relieve the Trustee from liability for
its own negligent action, its own negligent failure to act or its own willful misconduct, except
that
(a) prior to the occurrence of an Event of Default with respect to the Securities of
any series and after the curing or waiving of all such Events of Default with respect to
such series which may have occurred:
(i) the duties and obligations of the Trustee with respect to the Securities of
any series shall be determined solely by the express provisions of this Indenture,
and the Trustee shall not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture, and no implied covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on the part of the Trustee, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case
of any such statements, certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall be under a
duty to examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein);
(b) the Trustee shall not be liable for any error of judgment made in good faith by a
Responsible Officer or Responsible Officers of the Trustee, unless it shall be proved that
the Trustee was negligent in ascertaining the pertinent facts; and
34
(c) the Trustee shall not be liable with respect to any action taken or omitted to be
taken by it in good faith in accordance with the direction of the Holders pursuant to
Section 5.9 relating to the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the Trustee to expend or risk
its own funds or otherwise incur personal financial liability in the performance of any of its
duties or in the exercise of any of its rights or powers, if there shall be reasonable ground for
believing that the repayment of such funds or adequate indemnity against such liability is not
reasonably assured to it.
The provisions of this Section 6.1 are in furtherance of and subject to Section 315 of the
Trust Indenture Act.
SECTION 6.2 CERTAIN RIGHTS OF THE TRUSTEE
. In furtherance of and subject to the Trust Indenture Act, and
subject to Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting or refraining
from acting upon any resolution, Officer’s Certificate or any other certificate, statement,
instrument, opinion, report, notice, request, consent, order, bond, debenture, note, coupon,
security or other paper or document believed by it to be genuine and to have been signed or
presented by the proper party or parties;
(b) any request, direction, order or demand of the Issuer mentioned herein shall be
sufficiently evidenced by an Officer’s Certificate or Issuer Order (unless other evidence in
respect thereof is specifically prescribed herein or in the terms established in respect of
any series); and any resolution of the Board of Directors may be evidenced to the Trustee by a copy thereof certified by the secretary or an assistant secretary of
the Issuer;
(c) the Trustee may consult with counsel of its selection, and any advice or any
Opinion of Counsel shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted to be taken by it hereunder in good faith and in reliance
thereon in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the trusts or powers
vested in it by this Indenture at the request, order or direction of any of the
Securityholders pursuant to the provisions of this Indenture, unless such Securityholders
shall have offered to the Trustee reasonable security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or omitted by it in good faith
and believed by it to be authorized or within the discretion, rights or powers conferred
upon it by this Indenture;
(f) prior to the occurrence of an Event of Default hereunder and after the curing or
waiving of all Events of Default, the Trustee shall not be bound to make any
35
investigation into the facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, consent, order, approval, appraisal, bond, debenture,
note, coupon, security, or other paper or document unless (i) requested in writing so to do
by the Holders of not less than a majority in aggregate principal amount of the Securities
of all series affected then Outstanding (treated as one class) or (ii) otherwise provided in
the terms of any series of Securities pursuant to Section 2.3; provided, that, if the
payment within a reasonable time to the Trustee of the costs, expenses or liabilities likely
to be incurred by it in the making of such investigation is, in the opinion of the Trustee,
not reasonably assured to the Trustee by the security afforded to it by the terms of this
Indenture, the Trustee may require reasonable security or indemnity satisfactory to it
against such expenses or liabilities as a condition to proceeding; the reasonable expenses
of every such investigation shall be paid by the Issuer or, if paid by the Trustee or any
predecessor trustee, shall be repaid by the Issuer upon demand;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys not regularly in its employ
and the Trustee shall not be responsible for any misconduct or negligence on the part of any
such agent or attorney appointed with due care by it hereunder;
(h) The Trustee shall not be deemed to have notice of any Event of Default unless a
Responsible Officer of the Trustee has actual knowledge thereof or unless written notice of
any event which is in fact an Event of Default is received by the Trustee at the Corporate
Trust Office and such notice references the Securities, the Issuer or this Indenture;
(i) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and each agent, custodian
and other Person employed to act hereunder; and
(j) the Trustee may request that the Issuer deliver a certificate setting forth the
names of individuals and/or titles of officers authorized at such time to take specified
actions pursuant to this Indenture, which certificate may be signed by any person authorized
to sign an Officer’s Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 6.3 TRUSTEE NOT RESPONSIBLE FOR RECITALS, DISPOSITION OF SECURITIES OR APPLICATION OF PROCEEDS
THEREOF
. The recitals contained herein and in the Securities, except the Trustee’s certificates of
authentication, shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no representation as to the
validity or sufficiency of this Indenture or of the Securities or Coupons. The Trustee shall not
be accountable for the use or application by the Issuer of any of the Securities or of the proceeds
thereof.
SECTION 6.4 TRUSTEE AND AGENTS MAY HOLD SECURITIES OR COUPONS; COLLECTIONS, ETC.
The Trustee or any agent
of the Issuer or of the Trustee,
36
in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were not the Trustee or
such agent and may otherwise deal with the Issuer and receive, collect, hold and retain collections
from the Issuer with the same rights it would have if it were not the Trustee or such agent.
SECTION 6.5 MONEYS HELD BY TRUSTEE
. Subject to the provisions of Section 10.4 hereof, all moneys received
by the Trustee shall, until used or applied as herein provided, be held in trust for the purposes
for which they were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of the Issuer or the
Trustee shall be under any liability for interest on any moneys received by it hereunder.
SECTION 6.6 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIM
. The Issuer covenants and
agrees to pay to the Trustee from time to time, and the Trustee shall be entitled to, such
compensation as the Issuer and the Trustee shall agree in writing (which shall not be limited by
any provision of law in regard to the compensation of a trustee of an express trust), and the
Issuer covenants and agrees to pay or reimburse the Trustee and each predecessor trustee upon its
request for all reasonable expenses, disbursements and advances incurred or made by or on behalf of
it in accordance with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents and other persons not regularly in its employ) except any such
expense, disbursement or advance as may arise from its own negligence or willful misconduct. The
Issuer also covenants to indemnify each of the Trustee or any predecessor Trustee and their agents
for, and to hold them harmless against, any and all loss, damage, claims, liability or expense,
including taxes (other than taxes based upon, measured by or determined by the income of the
Trustee), arising out of or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself against any claim (whether
asserted by the Issuer, or any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder, or in connection with enforcing
the provisions of this Section, except to the extent that such loss, damage, claim, liability or
expense is determined to have been caused by its own negligence or willful misconduct. When the
Trustee incurs expenses or renders services in connection with an Event of Default specified in
Section 5.1(e) or Section 5.1(f), the expenses (including the reasonable charges and expenses of
its counsel) and the compensation for the services are intended to constitute expenses of
administration under any applicable bankruptcy, insolvency or other similar law. The obligations
of the Issuer under this Section to compensate and indemnify the Trustee and each predecessor
trustee and to pay or reimburse the Trustee and each predecessor trustee for expenses,
disbursements and advances shall constitute additional indebtedness hereunder and shall survive the
satisfaction and discharge of this Indenture and the resignation or removal of the Trustee. Such
additional indebtedness shall be a senior claim to that of the Securities upon all property and
funds held or collected by the Trustee as such, except funds held in trust for the benefit of the
Holders of particular Securities or Coupons, and the Securities are hereby subordinated to such
senior claim.
SECTION 6.7 RIGHT OF TRUSTEE TO RELY ON OFFICER’S CERTIFICATE, ETC.
Subject to Sections 6.1 and 6.2,
whenever in the administration of the trusts of this Indenture the Trustee shall deem it necessary
or desirable that a matter be proved or
37
established prior to taking or suffering or omitting any action hereunder, such matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of negligence or bad faith on the part of the Trustee, be deemed to
be conclusively proved and established by an Officer’s Certificate delivered to the Trustee, and
such certificate, in the absence of negligence or willful misconduct on the part of the Trustee,
shall be full warrant to the Trustee for any action taken, suffered or omitted by it under the
provisions of this Indenture upon the faith thereof.
SECTION 6.8 INDENTURES NOT CREATING POTENTIAL CONFLICTING INTERESTS FOR THE TRUSTEE
. The following
indentures are hereby specifically described for the purposes of Section 310(b)(1) of the Trust
Indenture Act: this Indenture with respect to series of Securities that are of an equal priority
and the indenture between the Issuer and The First National Bank of Chicago, dated as of March 11,
1997, as amended, and the indenture between the Issuer and The Bank of New York, dated as of
January 29, 2002, in each case with respect to any series of securities thereunder that are of an
equal priority to any series of the Securities.
SECTION 6.9 QUALIFICATION OF TRUSTEE: CONFLICTING INTERESTS
. The Trustee shall comply with Section 310(b)
of the Trust Indenture Act.
SECTION 6.10 PERSONS ELIGIBLE FOR APPOINTMENT AS TRUSTEE
. The Trustee for each series of Securities
hereunder shall at all times be a corporation or banking association organized and doing business
under the laws of the United States of America, any State thereof or the District of Columbia,
having a combined capital and surplus of at least $50,000,000, and which is authorized under such
laws to exercise corporate trust powers and is subject to supervision or examination by Federal,
state or District of Columbia authority. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of the aforesaid supervising or examining
authority, then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. In case at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.11.
The provisions of this Section 6.10 are in furtherance of and subject to Section 310(a) of the
Trust Indenture Act.
SECTION 6.11 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR TRUSTEE
. (a) The Trustee, or any trustee or
trustees hereafter appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (i) if any Unregistered
Securities of a series affected are then Outstanding, by giving notice of such resignation to the
Holders thereof, by publication at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), (ii) if any
Unregistered Securities of a series affected are then Outstanding, by mailing notice of such
resignation to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust
38
Indenture Act at such addresses as were so furnished to the Trustee and (iii) by mailing notice of such resignation to the Holders of then Outstanding
Registered Securities of each series affected at their addresses as they shall appear on the
registry books. Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor trustee or trustees with respect to the applicable series by written instrument in
duplicate, executed by authority of the Board of Directors, one copy of which instrument shall be
delivered to the resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed with respect to any series and have accepted
appointment within 30 days after the mailing of such notice of resignation, the resigning trustee
may petition any court of competent jurisdiction at the expense of the Issuer for the appointment
of a successor trustee, or any Securityholder who has been a bona fide Holder of a Security or
Securities of the applicable series for at least six months may, subject to the provisions of Section 5.12, on behalf of himself and all others similarly
situated, petition any such court for the appointment of a successor trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe, appoint a successor
trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of Section 310(b) of
the Trust Indenture Act with respect to any series of Securities after written
request therefor by the Issuer or by any Securityholder who has been a bona fide
Holder of a Security or Securities of such series for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the provisions
of Section 6.10 and Section 310(a) of the Trust Indenture Act and shall fail to
resign after written request therefor by the Issuer or by any Securityholder who has
been a bona fide Holder of a Security or Securities of such series for at least six
months; or
(iii) the Trustee shall become incapable of acting with respect to any series
of Securities, or shall be adjudged bankrupt or insolvent, or a receiver or
liquidator of the Trustee or of its property shall be appointed, or any public
officer shall take charge or control of the Trustee or of its property or affairs
for the purpose of rehabilitation, conservation or liquidation;
then, in any such case, the Issuer may remove the Trustee with respect to the applicable series of
Securities and appoint a successor trustee for such series by written instrument, in duplicate,
executed by order of the Board of Directors of the Issuer, one copy of which instrument shall be
delivered to the Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act, any Securityholder who has been a bona
fide Holder of a Security or Securities of such series for at least six months may on behalf of
himself and all others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee with respect to such series.
Such court may thereupon, after such notice, if any, as it may deem proper and so prescribe, remove
the Trustee and appoint a successor trustee.
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(c) The Holders of a majority in aggregate principal amount of the Securities of each
series at the time outstanding may at any time remove the Trustee with respect to Securities
of such series and appoint a successor trustee with respect to the Securities of such series
by delivering to the Trustee so removed, to the successor trustee so appointed and to the
Issuer the evidence provided for in Section 7.1 of the action in that regard taken by the
Securityholders.
(d) Any resignation or removal of the Trustee with respect to any series and any
appointment of a successor trustee with respect to such series pursuant to any of the
provisions of this Section 6.11 shall become effective upon acceptance of appointment by the
successor trustee as provided in Section 6.12.
SECTION 6.12 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR TRUSTEE
. Any successor trustee appointed as provided
in Section 6.11 shall execute and deliver to the Issuer and to its predecessor trustee an
instrument accepting such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee with respect to all or any applicable series shall become effective and such
successor trustee, without any further act, deed or conveyance, shall become vested with all
rights, powers, duties and obligations with respect to such series of its predecessor hereunder,
with like effect as if originally named as trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor trustee, upon payment of its charges then
unpaid, the trustee ceasing to act shall, subject to Section 10.4, pay over to the successor
trustee all moneys at the time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and obligations. Upon
request of any such successor trustee, the Issuer shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee all such rights
and powers. Any trustee ceasing to act shall, nevertheless, retain a prior claim upon all property
or funds held or collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 6.6.
If a successor trustee is appointed with respect to the Securities of one or more (but not
all) series, the Issuer, the predecessor trustee and each successor trustee with respect to the
Securities of any applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable to confirm that all
the rights, powers, trusts and duties of the predecessor trustee with respect to the Securities of
any series as to which the predecessor trustee is not retiring shall continue to be vested in the
predecessor trustee, and shall add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts hereunder by more than one
trustee, it being understood that nothing herein or in such supplemental indenture shall constitute
such trustees co-trustees of the same trust and that each such trustee shall be trustee of a trust
or trusts under separate indentures.
No successor trustee with respect to any series of Securities shall accept appointment as
provided in this Section 6.12 unless at the time of such acceptance such successor trustee shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.10.
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Upon acceptance of appointment by any successor trustee as provided in this Section 6.12, the
Issuer shall give notice thereof (a) if any Unregistered Securities of a series affected are then
Outstanding, to the Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and at least once in an Authorized
Newspaper in London (and, if required by Section 3.7, at least once in an Authorized Newspaper in
Luxembourg), (b) if any Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee pursuant to Section
313(c)(2) of the Trust Indenture Act, by mailing such notice to such Holders at such addresses as
were so furnished to the Trustee (and the Trustee shall make such information available to the
Issuer for such purpose) and (c) to the Holders of Registered Securities of each series affected,
by mailing such notice to such Holders at their addresses as they shall appear on the registry books. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.11. If the Issuer fails to give such notice
within ten days after acceptance of appointment by the successor trustee, the successor trustee
shall cause such notice to be given at the expense of the Issuer.
SECTION 6.13 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS OF TRUSTEE
. Any corporation or
banking association into which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or banking association resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation or banking association
succeeding to all or substantially all of the corporate trust business of the Trustee, shall be the
successor of the Trustee hereunder, provided, that such corporation or banking association shall be
qualified under Section 310(b) of the Trust Indenture Act and eligible under the provisions of
Section 6.10, without the execution or filing of any paper or any further act on the part of any of
the parties hereto, anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall succeed to the trusts created by this
Indenture any of the Securities of any series shall have been authenticated but not delivered, any
such successor to the Trustee may adopt the certificate of authentication of any predecessor
trustee and deliver such Securities so authenticated; and, in case at that time any of the
Securities of any series shall not have been authenticated, any such successor to the Trustee may
authenticate such Securities either in the name of any predecessor hereunder or in the name of the
successor Trustee; and in all such cases such certificate of authentication shall have the full
force which under this Indenture or the Securities of such series it is provided that the
certificate of authentication of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor trustee or to authenticate Securities of any
series in the name of any predecessor trustee shall apply only to its successor or successors by
merger, conversion or consolidation.
SECTION 6.14 PREFERENTIAL COLLECTION OF CLAIMS AGAINST THE ISSUER
. The Trustee shall comply with Section
311(a) of the Trust Indenture Act, excluding any creditor relationship listed in Section 311(b) of
the Trust Indenture Act. A Trustee who has resigned or been removed shall be subject to Section
311(a) of the Trust Indenture Act to the extent indicated.
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SECTION 6.15 APPOINTMENT OF AUTHENTICATING AGENT
. As long as any Securities of a series remain
Outstanding, the Trustee may, by an instrument in writing, appoint with the approval of the Issuer
an authenticating agent (the “Authenticating Agent”) which shall be authorized to act on behalf of
the Trustee to authenticate Securities, including Securities issued upon exchange, registration of
transfer, partial redemption or pursuant to Section 2.9. Securities of each such series
authenticated by such Authenticating Agent shall be entitled to the benefits of this Indenture and shall be valid and obligatory
for all purposes as if authenticated by the Trustee. Whenever reference is made in this Indenture
to the authentication and delivery of Securities of any series by the Trustee or to the Trustee’s
Certificate of Authentication, such reference shall be deemed to include authentication and
delivery on behalf of the Trustee by an Authenticating Agent for such series and a Certificate of
Authentication executed on behalf of the Trustee by such Authenticating Agent. Such Authenticating
Agent shall at all times be a corporation organized and doing business under the laws of the United
States of America or of any State, authorized under such laws to exercise corporate trust powers,
having a combined capital and surplus of at least $45,000,000 (determined as provided in Section
6.10 with respect to the Trustee) and subject to supervision or examination by Federal or state
authority.
Any corporation into which any Authenticating Agent may be merged or converted, or with which
it may be consolidated, or any corporation resulting from any merger, conversion or consolidation
to which any Authenticating Agent shall be a party, or any corporation succeeding to the corporate
agency business of any Authenticating Agent, shall continue to be the Authenticating Agent with
respect to all series of Securities for which it served as Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee or such
Authenticating Agent. Any Authenticating Agent may at any time, and if it shall cease to be
eligible shall, resign by giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a termination, or in case at any time
any Authenticating Agent shall cease to be eligible in accordance with the provisions of this
Section 6.15 with respect to one or more series of Securities, the Trustee shall upon receipt of an
Issuer Order appoint a successor Authenticating Agent, and the Issuer shall provide notice of such
appointment to all Holders of Securities of such series in the manner and to the extent provided in
Section 11.4. Any successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all rights, powers, duties and responsibilities of its predecessor
hereunder, with like effect as if originally named as Authenticating Agent. The Issuer agrees to
pay to the Authenticating Agent for such series from time to time reasonable compensation. The
Authenticating Agent for the Securities of any series shall have no responsibility or liability for
any action taken by it as such at the direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
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SECTION 7.1 EVIDENCE OF ACTION TAKEN BY SECURITYHOLDERS
. Any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be given or taken by a
specified percentage in principal amount of the Securityholders of any or all series may be
embodied in and evidenced by one or more instruments of substantially similar tenor signed by such
specified percentage of Securityholders in person or by agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument or of a writing
appointing any such agent shall be sufficient for any purpose of this Indenture and (subject to
Sections 6.1 and 6.2) conclusive in favor of the Trustee and the Issuer, if made in the manner
provided in this Article.
SECTION 7.2 PROOF OF EXECUTION OF INSTRUMENTS AND OF HOLDING OF SECURITIES
. Subject to Sections 6.1 and
6.2, the execution of any instrument by a Securityholder or his agent or proxy may be proved in
accordance with such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding of Registered Securities shall be
proved by the Security register or by a certificate of the registrar thereof.
SECTION 7.3 HOLDERS TO BE TREATED AS OWNERS
. The Issuer, the Trustee and any agent of the Issuer or the
Trustee may deem and treat the person in whose name any Security shall be registered upon the
Security register for such series as the absolute owner of such Security (whether or not such
Security shall be overdue and notwithstanding any notation of ownership or other writing thereon)
for the purpose of receiving payment of or on account of the principal of and, subject to the
provisions of this Indenture, interest on such Security and for all other purposes; and neither the
Issuer nor the Trustee nor any agent of the Issuer or the Trustee shall be affected by any notice
to the contrary. The Issuer, the Trustee and any agent of the Issuer or the Trustee may treat the
Holder of any Unregistered Security and the Holder of any Coupon as the absolute owner of such
Unregistered Security or Coupon (whether or not such Unregistered Security or Coupon shall be
overdue) for the purpose of receiving payment thereof or on account thereof and for all other
purposes, and neither the Issuer, the Trustee, nor any agent of the Issuer or the Trustee shall be
affected by any notice to the contrary. All such payments so made to any such person, or upon his
order, shall be valid, and, to the extent of the sum or sums so paid, effectual to satisfy and
discharge the liability for moneys payable upon any such Unregistered Security or Coupon.
SECTION 7.4 SECURITIES OWNED BY ISSUER DEEMED NOT OUTSTANDING
. In determining whether the Holders of the
requisite aggregate principal amount of Outstanding Securities of any or all series have concurred
in any request, demand, authorization, direction, notice, consent, waiver or other action by
Securityholders under this Indenture, Securities which are owned by the Issuer or any other obligor
on the Securities with respect to which such determination is being made or by any person directly
or indirectly controlling or controlled by or under direct or indirect common control with the
Issuer or any other obligor on the Securities with respect to which such determination is being
made shall be disregarded and deemed not to be Outstanding for the purpose of any such
determination, except that for the purpose of determining whether the Trustee shall be protected in
relying on any such action only Securities which a Responsible Officer of the Trustee actually
knows are so owned
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shall be so disregarded. Securities so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the satisfaction of the Trustee the pledgee’s
right so to act with respect to such Securities and that the pledgee is not the Issuer or any other
obligor upon the Securities or any person directly or indirectly controlling or controlled by or
under direct or indirect common control with the Issuer or any other obligor on the Securities. In
case of a dispute as to such right, the advice of counsel shall be full protection in respect of
any decision made by the Trustee in accordance with such advice. Upon request of the Trustee, the
Issuer shall furnish to the Trustee promptly an Officer’s Certificate listing and identifying all
Securities, if any, known by the Issuer to be owned or held by or for the account of any of the
above-described persons; and, subject to Sections 6.1 and 6.2, the Trustee shall be entitled to
accept such Officer’s Certificate as conclusive evidence of the facts therein set forth and of the
fact that all Securities not listed therein are Outstanding for the purpose of any such
determination.
SECTION 7.5 RIGHT OF REVOCATION OF ACTION TAKEN
. At any time prior to (but not after) the evidencing to
the Trustee, as provided in Section 7.1, of the taking of any action by the Holders of the
percentage in aggregate principal amount of the Securities of any or all series, as the case may
be, specified in this Indenture in connection with such action, any Holder of a Security the serial
number of which is shown by the evidence to be included among the serial numbers of the Securities
the Holders of which have consented to such action may, by filing written notice at the Corporate
Trust Office and upon proof of holding as provided in this Article, revoke such action so far as
concerns such Security. Except as aforesaid, any such action taken by the Holder of any Security
shall be conclusive and binding upon such Holder and upon all future Holders and owners of such
Security and of any Securities issued in exchange or substitution therefor or on registration of
transfer thereof, irrespective of whether or not any notation in regard thereto is made upon any
such Security. Any action taken by the Holders of the percentage in aggregate principal amount of
the Securities of any or all series, as the case may be, specified in this Indenture in connection
with such action shall be conclusively binding upon the Issuer, the Trustee and the Holders of all
the Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF SECURITYHOLDERS
. The Issuer, when authorized by a
Board Resolution (which resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance with or pursuant to
an Issuer Order), and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) to convey, transfer, assign, mortgage or pledge to the Trustee as security for the
Securities of one or more series any property or assets;
(b) to evidence the succession of another corporation to the Issuer, or successive
successions, and the assumption by the successor corporation of the covenants, agreements
and obligations of the Issuer pursuant to Article IX;
44
(c) to add to the covenants of the Issuer such further covenants, restrictions,
conditions or provisions as the Issuer and the Trustee shall consider to be for the
protection of the Holders of Securities or Coupons, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants, restrictions,
conditions or provisions an Event of Default permitting the enforcement of all or any of the
several remedies provided in this Indenture as herein set forth; provided, that in respect
of any such additional covenant, restriction, condition or provision such supplemental
indenture may provide for a particular period of grace after default (which period may be
shorter or longer than that allowed in the case of other defaults) or may provide for an
immediate enforcement upon such an Event of Default or may limit the remedies available to
the Trustee upon such an Event of Default or may limit the right of the Holders of a
majority in aggregate principal amount of the Securities of such series to waive such an
Event of Default;
(d) to cure any ambiguity or to correct or supplement any provision contained herein or
in any supplemental indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to make any other provisions
as the Issuer may deem necessary or desirable, provided, that no such action shall adversely
affect the interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities of any series or of the Coupons
appertaining to such Securities as permitted by Sections 2.1 and 2.3;
(f) to evidence and provide for the acceptance of appointment hereunder by a successor
trustee with respect to the Securities of one or more series and to add to or change any of
the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one trustee, pursuant to the
requirements of Section 6.12; and
(g) to change or eliminate any of the provisions of this Indenture, or to add any new
provision to this Indenture, in respect of one or more series of Securities; provided,
however, that any such change, elimination or addition shall not apply to any Security
Outstanding on the date of such indenture supplemental hereto.
The Trustee is hereby authorized to join with the Issuer in the execution of any such
supplemental indenture, to make any further appropriate agreements and stipulations which may be
therein contained and to accept the conveyance, transfer, assignment, mortgage or pledge of any
property thereunder, but the Trustee shall not be obligated to enter into any such supplemental
indenture which affects the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
Any supplemental indenture authorized by the provisions of this Section may be executed
without the consent of the Holders of any of the Securities at the time outstanding,
notwithstanding any of the provisions of Section 8.2.
SECTION 8.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF SECURITYHOLDERS.
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(A) Except as set forth in paragraph (C) below, with the consent (evidenced as
provided in Article VII) of the Holders of not less than a majority in aggregate principal
amount of the Securities at the time Outstanding of all series of Senior Securities affected
by such supplemental indenture (voting as one class), the Issuer, when authorized by a Board
Resolution (which resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as in force and effect at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities.
(B) Except as set forth in paragraph (C) below, with the consent (evidenced as provided
in Article VII) of the Holders of not less than a majority in aggregate principal amount of
the Securities at the time Outstanding of all series of Subordinated Securities affected by
such supplemental indenture (voting as one class), the Issuer, when authorized by a Board
Resolution (which resolution may provide general terms or parameters for such action and may
provide that the specific terms of such action may be determined in accordance with or
pursuant to an Issuer Order), and the Trustee may, from time to time and at any time, enter
into an indenture or indentures supplemental hereto (which shall conform to the provisions
of the Trust Indenture Act as in force and effect at the date of execution thereof) for the
purpose of adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the Coupons
appertaining to such Securities.
(C) No such supplemental indenture shall (i) extend the final maturity of any Security,
or reduce the principal amount thereof, or premium thereon, if any, or reduce the rate or
extend the time of payment of interest thereon, or reduce any amount payable on redemption
thereof, or make the principal thereof (including any amount in respect of original issue
discount), or premium thereon, if any, or interest thereon payable in any coin or currency
other than that provided in the Securities and Coupons or in accordance with the terms
thereof, or reduce the amount of the principal of an Original Issue Discount Security that
would be due and payable upon an acceleration of the maturity thereof pursuant to Section
5.1 or the amount thereof provable in bankruptcy pursuant to Section 5.2, or in the case of
Subordinated Securities of any series, modify any of the Subordination Provisions or the
definition of “Senior Indebtedness” relating to such series in a manner adverse to the
holders of such Subordinated Securities, or alter the provisions of Section 11.11 or 11.12
or impair or affect the right of any Securityholder to institute suit for the payment
thereof when due or, if the Securities provide therefor, any right of repayment at the
option of the Securityholder, in each case without the consent of the Holder of each
Security so affected, or (ii) reduce the aforesaid percentage of Securities of any series,
the consent of the Holders of which is required for any such supplemental indenture, without
the consent of the Holders of each Security so affected.
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(D) A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which has expressly been included solely for the benefit of one
or more particular series of Securities, or which modifies the rights of Holders of
Securities of such series, or of Coupons appertaining to such Securities, with respect to
such covenant or provision, shall be deemed not to affect the rights under this Indenture of
the Holders of Securities of any other series or of the Coupons appertaining to such
Securities.
Upon the request of the Issuer, accompanied by a copy of a resolution of the Board of
Directors (which resolution may provide general terms or parameters for such action and may provide
that the specific terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by the secretary or an assistant secretary of the Issuer authorizing the
execution of any such supplemental indenture, and upon the filing with the Trustee of evidence of
the consent of the Holders of the Securities as aforesaid and other documents, if any, required by
Section 7.1, the Trustee shall join with the Issuer in the execution of such supplemental indenture
unless such supplemental indenture affects the Trustee’s own rights, duties or immunities under
this Indenture or otherwise, in which case the Trustee may in its discretion, but shall not be
obligated to, enter into such supplemental indenture.
It shall not be necessary for the consent of the Securityholders under this Section to approve
the particular form of any proposed supplemental indenture, but it shall be sufficient if such
consent shall approve the substance thereof.
Promptly after the execution by the Issuer and the Trustee of any supplemental indenture
pursuant to the provisions of this Section, the Trustee shall give notice thereof (i) to the
Holders of then Outstanding Registered Securities of each series affected thereby, by mailing a
notice thereof by first-class mail to such Holders at their addresses as they shall appear on the
Security register, (ii) if any Unregistered Securities of a series affected thereby are then
Outstanding, to the Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act, by mailing a notice thereof by
first-class mail to such Holders at such addresses as were so furnished to the Trustee and (iii) if
any Unregistered Securities of a series affected thereby are then Outstanding, to all Holders
thereof, by publication of a notice thereof at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, at least once in an Authorized Newspaper in Luxembourg), and in each case
such notice shall set forth in general terms the substance of such supplemental indenture. Any
failure of the Issuer to give such notice, or any defect therein, shall not, however, in any way
impair or affect the validity of any such supplemental indenture.
SECTION 8.3 EFFECT OF SUPPLEMENTAL INDENTURE
. Upon the execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance therewith and the
respective rights, limitations of rights, obligations, duties and immunities under this Indenture
of the Trustee, the Issuer and the Holders of Securities of each series affected thereby shall
thereafter be determined, exercised and enforced hereunder subject in all respects to such
modifications and amendments, and all the terms and conditions of any such supplemental indenture
shall be and be deemed to be part of the terms and conditions of this Indenture for any and all
purposes.
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SECTION 8.4 DOCUMENTS TO BE GIVEN TO TRUSTEE
. The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be provided with an
Officer’s Certificate and an Opinion of Counsel as conclusive evidence that any supplemental
indenture executed pursuant to this Article VIII complies with the applicable provisions of this
Indenture.
SECTION 8.5 NOTATION ON SECURITIES IN RESPECT OF SUPPLEMENTAL INDENTURES
. Securities of any series authenticated and delivered after the execution of any
supplemental indenture pursuant to the provisions of this Article may bear a notation in form
approved by the Trustee for such series as to any matter provided for by such supplemental
indenture or as to any action taken by Securityholders. If the Issuer or the Trustee shall so
determine, new Securities of any series so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in any such
supplemental indenture may be prepared by the Issuer, authenticated by the Trustee and delivered in
exchange for the Securities of such series then Outstanding.
ARTICLE IX
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 9.1 ISSUER MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
. The Issuer shall not consolidate with or merge into any other Person or transfer or lease
its properties and assets substantially as an entirety to any Person, and the Issuer shall not
permit any other Person to consolidate with or merge into the Issuer, unless:
(a) either the Issuer shall be the continuing corporation, or the successor corporation
(if other than the Issuer) formed by such consolidation or into which the Issuer is merged
or to which the properties and assets of the Issuer substantially as an entirety are
transferred or leased shall be a corporation organized and existing under the laws of the
United States of America, any State thereof or the District of Columbia and shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all the obligations of the Issuer under the Securities and this
Indenture; and
(b) immediately after giving effect to such transaction and treating any indebtedness
which becomes an obligation of the Issuer or a Subsidiary as a result of such transaction as
having been incurred by the Issuer or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or both, would become an
Event of Default, shall have happened and be continuing.
SECTION 9.2 SUCCESSOR CORPORATION SUBSTITUTED
. The successor corporation formed by such consolidation or into which the Issuer is merged
or to which such transfer or lease is made shall succeed to and be substituted for, and may
exercise every right and power of, the Issuer under this Indenture with the same effect as if such
successor corporation had been named as the Issuer herein, and thereafter (except in the case of a
lease to another Person) the predecessor corporation shall be relieved of all obligations and
covenants under the Indenture and the Securities and, in the event of such conveyance or transfer,
any such predecessor corporation may be dissolved and liquidated.
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SECTION 9.3 OPINION OF COUNSEL TO BE GIVEN TO TRUSTEE
. The Trustee, subject to the provisions of Sections 6.1 and 6.2, shall be provided with
an Opinion of Counsel as conclusive evidence that any such consolidation, merger, sale or
conveyance, and any such assumption, complies with the provisions of this Article IX.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
SECTION 10.1 SATISFACTION AND DISCHARGE OF INDENTURE
.
(A) If at any time (i) the Issuer shall have paid or caused to be paid the principal of and
interest on all the Securities of any series Outstanding hereunder and all unmatured Coupons
appertaining thereto (other than Securities of such series and Coupons appertaining thereto which
have been destroyed, lost or stolen and which have been replaced or paid as provided in Section
2.9) as and when the same shall have become due and payable, or (ii) the Issuer shall have
delivered to the Trustee for cancellation all Securities of any series theretofore authenticated
and all unmatured Coupons appertaining thereto (other than any Securities of such series and
Coupons appertaining thereto which shall have been destroyed, lost or stolen and which shall have
been replaced or paid as provided in Section 2.9) or (iii) in the case of any series of Securities
where the exact amount (including the currency of payment) of principal of and interest due on
which can be determined at the time of making the deposit referred to in clause (b) below, (a) all
the Securities of such series and all unmatured Coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation shall have become due and payable, or are by their terms
to become due and payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and (b) the Issuer
shall have irrevocably deposited or caused to be deposited with the Trustee as trust funds in trust
the entire amount in (i) cash (other than moneys repaid by the Trustee or any paying agent to the
Issuer in accordance with Section 10.4), (ii) in the case of any series of Securities the payments
on which may only be made in Dollars, direct obligations of the United States of America, backed by
its full faith and credit (“U.S. Government Obligations”), maturing as to principal and interest at
such times and in such amounts as will insure the availability of cash sufficient to pay at such
maturity or upon such redemption, as the case may be, or (iii) a combination thereof, sufficient,
in the opinion of a nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, to pay (x) the principal and interest on
all Securities of such series and Coupons appertaining thereto on each date that such principal or
interest is due and payable and (y) any mandatory sinking fund payments on the dates on which such
payments are due and payable in accordance with the terms of the Indenture and the Securities of
such series; and if, in any such case, the Issuer shall also pay or cause to be paid all other sums
payable hereunder by the Issuer, then this Indenture shall cease to be of further effect (except as
to (i) rights of registration of transfer and exchange of Securities of such Series and of Coupons
appertaining thereto pursuant to Section 2.8 and the Issuer’s right of optional redemption, if any,
(ii) substitution of mutilated, defaced, destroyed, lost or stolen Securities or Coupons, (iii)
rights of holders of Securities and Coupons appertaining thereto to receive payments of principal
thereof and interest thereon, upon the original stated due dates therefor (but not upon
acceleration), and remaining rights of the Holders to receive
mandatory sinking fund payments,
49
if any, (iv) any optional redemption rights of such series of Securities to the extent to be
exercised to make such call for redemption within one year, (v) the rights, obligations, duties and
immunities of the Trustee hereunder, including those under Section 6.6, (vi) the rights of the
Holders of Securities of such series and Coupons appertaining thereto as beneficiaries hereof with
respect to the property so deposited with the Trustee payable to all or any of them, and (vii) the
obligations of the Issuer under Section 3.2) and the Trustee, on demand of the Issuer accompanied
by an Officer’s Certificate and an Opinion of Counsel and at the cost and expense of the Issuer,
shall execute proper instruments acknowledging such satisfaction of and discharging this Indenture;
provided, that the rights of Holders of the Securities and Coupons to receive amounts in respect of
principal of and interest on the Securities and Coupons held by them shall not be delayed longer
than required by then-applicable mandatory rules or policies of any securities exchange upon which
the Securities are listed. The Issuer agrees to reimburse the Trustee for any costs or expenses
thereafter reasonably and properly incurred and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Securities of such series.
(B) The following provisions shall apply to the Securities of each series unless specifically
otherwise provided in a Board Resolution, Officer’s Certificate or indenture supplemental hereto
provided pursuant to Section 2.3. In addition to discharge of the Indenture pursuant to the next
preceding paragraph, in the case of any series of Securities the exact amounts (including the
currency of payment) of principal of and interest due on which can be determined at the time of
making the deposit referred to in clause (a) below, the Issuer shall be deemed to have paid and
discharged the entire indebtedness on all the Securities of such a series and the Coupons
appertaining thereto on the date of the deposit referred to in subparagraph (a) below, and the
provisions of this Indenture with respect to the Securities of such series and Coupons appertaining
thereto shall no longer be in effect (except as to (i) rights of registration of transfer and
exchange of Securities of such series and of Coupons appertaining thereto pursuant to Section 2.8
and the Issuer’s right of optional redemption, if any, (ii) substitution of mutilated, defaced,
destroyed, lost or stolen Securities or Coupons, (iii) rights of Holders of Securities and Coupons
appertaining thereto to receive payments of principal thereof and interest thereon, upon the
original stated due dates therefor (but not upon acceleration), and remaining rights of the Holders
to receive mandatory sinking fund payments, if any, (iv) any optional redemption rights of such
series of Securities to the extent to be exercised to make such call for redemption within one
year, (v) the rights, obligations, duties and immunities of the Trustee hereunder, (vi) the rights
of the Holders of Securities of such series and Coupons appertaining thereto as beneficiaries
hereof with respect to the property so deposited with the Trustee payable to all or any of them and
(vii) the obligations of the Issuer under Section 3.2) and the Trustee, at the expense of the
Issuer, shall at the Issuer’s request, execute proper instruments acknowledging the same, if
(a) with reference to this provision the Issuer has irrevocably deposited or caused to
be irrevocably deposited with the Trustee as trust funds in trust, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of the Securities of such
series and Coupons appertaining thereto (i) cash in an amount, or (ii) in the case of any
series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations, maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
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sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series and Coupons appertaining
thereto on each date that such principal or interest is due and payable and (b) any
mandatory sinking fund payments on the dates on which such payments are due and payable in
accordance with the terms of the Indenture and the Securities of such series;
(b) such deposit will not result in a breach or violation of, or constitute a default
under, any agreement or instrument to which the Issuer is a party or by which it is bound;
(c) the Issuer has delivered to the Trustee an Opinion of Counsel based on the fact
that (x) the Issuer has received from, or there has been published by, the IRS a ruling or
(y) since the date hereof, there has been a change in the applicable United States Federal
income tax law, in either case to the effect that, and such opinion shall confirm that, the
Holders of the Securities of such series and Coupons appertaining thereto will not recognize
income, gain or loss for United States Federal income tax purposes as a result of such
deposit, defeasance and discharge and will be subject to United States Federal income tax on
the same amount and in the same manner and at the same times, as would have been the case if
such deposit, defeasance and discharge had not occurred; and
(d) the Issuer has delivered to the Trustee an Officer’s Certificate and an Opinion of
Counsel, each stating that all conditions precedent provided for relating to the defeasance
contemplated by this provision have been complied with.
(C) The Issuer shall be released from its obligations under Sections 3.6 and 9.1 and unless
otherwise provided for in the Board Resolution, Officer’s Certificate or Indenture supplemental
hereto establishing such series of Securities, from all covenants and other obligations referred to
in Section 2.3(19) or 2.3(21) with respect to such series of Securities, and any Coupons
appertaining thereto, outstanding on and after the date the conditions set forth below are
satisfied (hereinafter, “covenant defeasance”). For this purpose, such covenant defeasance means
that, with respect to the Outstanding Securities of any series, the Issuer may omit to comply with
and shall have no liability in respect of any term, condition or limitation set forth in such
Section, whether directly or indirectly by reason of any reference elsewhere herein to such Section
or by reason of any reference in such Section to any other provision herein or in any other
document and such omission to comply shall not constitute an Event of Default under Section 5.1,
but the remainder of this Indenture and such Securities and Coupons shall be unaffected thereby.
The following shall be the conditions to application of this subsection C of this Section 10.1:
(a) The Issuer has irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for the purpose of making the following payments, specifically pledged
as security for, and dedicated solely to, the benefit of the holders of the Securities of
such series and coupons appertaining thereto, (i) cash in an amount, or (ii) in the case of
any series of Securities the payments on which may only be made in Dollars, U.S. Government
Obligations maturing as to principal and interest at such times and in such amounts as will
insure the availability of cash or (iii) a combination thereof,
51
sufficient, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the Trustee, to pay
(A) the principal and interest on all Securities of such series and Coupons appertaining
thereof and (B) any mandatory sinking fund payments on the day on which such payments are
due and payable in accordance with the terms of the Indenture and the Securities of such
series;
(b) No Event of Default or event which with notice or lapse of time or both would
become an Event of Default with respect to the Securities shall have occurred and be
continuing on the date of such deposit;
(c) Such covenant defeasance shall not cause the Trustee to have a conflicting interest
as defined in Section 6.9 and for purposes of the Trust Indenture Act with respect to any
securities of the Issuer;
(d) Such covenant defeasance shall not result in a breach or violation of, or
constitute a default under any agreement or instrument to which the Issuer is a party or by
which it is bound;
(e) Such covenant defeasance shall not cause any Securities then listed on any
registered national securities exchange under the Exchange Act to be delisted;
(f) The Issuer shall have delivered to the Trustee an Officer’s Certificate and Opinion
of Counsel to the effect that the Holders of the Securities of such series and Coupons
appertaining thereto will not recognize income, gain or loss for United States Federal
income tax purposes as a result of such covenant defeasance and will be subject to United
States Federal income tax on the same amounts, in the same manner and at the same times as
would have been the case if such covenant defeasance had not occurred; and
(g) The Issuer shall have delivered to the Trustee an Officer’s Certificate and an
Opinion of Counsel, each stating that all conditions precedent provided for relating to the
covenant defeasance contemplated by this provision have been complied with.
SECTION 10.2 APPLICATION BY TRUSTEE OF FUNDS DEPOSITED FOR PAYMENT OF SECURITIES
. Subject to Section 10.4, all moneys deposited with the Trustee (or other trustee) pursuant
to Section 10.1 shall be held in trust and applied by it to the payment, either directly or through
any paying agent (including the Issuer acting as its own paying agent), to the Holders of the
particular Securities of such series and of Coupons appertaining thereto for the payment or
redemption of which such moneys have been deposited with the Trustee, of all sums due and to become
due thereon for principal and interest; but such money need not be segregated from other funds
except to the extent required by law.
SECTION 10.3 REPAYMENT OF MONEYS HELD BY PAYING AGENT
. In connection with the satisfaction and discharge of this Indenture with respect to
Securities of any series, all moneys then held by any paying agent under the provisions of this
Indenture with respect to such series of Securities shall, upon demand of the Issuer, be repaid to
it or paid to the
52
Trustee and thereupon such paying agent shall be released from all further liability with
respect to such moneys.
SECTION 10.4 RETURN OF MONEYS HELD BY TRUSTEE AND PAYING AGENT UNCLAIMED FOR TWO YEARS
. Any moneys deposited with or paid to the Trustee or any paying agent for the payment of the
principal of or interest on any Security of any series and of any Coupons attached thereto and not
applied but remaining unclaimed for two years after the date upon which such principal or interest
shall have become due and payable, shall, upon the written request of the Issuer and unless
otherwise required by mandatory provisions of applicable escheat or abandoned or unclaimed property
law, be repaid to the Issuer by the Trustee for such series or such paying agent, and the Holder of
the Securities of such series and of any Coupons appertaining thereto shall, unless otherwise
required by mandatory provisions of applicable escheat or abandoned or unclaimed property laws,
thereafter look only to the Issuer for any payment which such Holder may be entitled to collect,
and all liability of the Trustee or any paying agent with respect to such moneys shall thereupon
cease; provided, that the Trustee or such paying agent, before being required to make any such
repayment with respect to moneys deposited with it for any payment (a) in respect of Registered
Securities of any series, shall at the expense of the Issuer, mail by first-class mail to Holders
of such Securities at their addresses as they shall appear on the Security register, and (b) in
respect of Unregistered Securities of any series, shall at the expense of the Issuer cause to the
published once, in an Authorized Newspaper in the Borough of Manhattan, The City of New York and
once in an Authorized Newspaper in London (and, if required by Section 3.7, once in an Authorized
Newspaper in Luxembourg), notice, that such moneys remain and that, after a date specified
therein, which shall not be less than thirty days from the date of such mailing or publication, any
unclaimed balance of such money then remaining will be repaid to the Issuer.
SECTION 10.5 INDEMNITY FOR U.S. GOVERNMENT OF OBLIGATIONS
. The Issuer shall pay and indemnify the Trustee against any tax, fee or other charge imposed
on or assessed against the U.S. Government Obligations deposited pursuant to Section 10.1 or the
principal or interest received in respect of such obligations.
SECTION 10.6 EFFECT ON SUBORDINATION PROVISIONS
. Unless otherwise expressly established pursuant to Section 2.3 with respect to the
Subordinated Securities of any series, the provisions of Section 11.13 hereof, insofar as they
pertain to the Subordinated Securities of such series, and the Subordination Provisions established
pursuant to Section 2.3(9) with respect to such series, are hereby expressly made subject to the
provisions for satisfaction and discharge and defeasance and covenant defeasance set forth in
Section 10.1 hereof and, anything herein to the contrary notwithstanding, upon the effectiveness of
such satisfaction and discharge and defeasance and covenant defeasance pursuant to Section 10.1
with respect to the Securities of such series, such Securities shall thereupon cease to be so
subordinated and shall no longer be subject to the provisions of Section 11.13 or the
Subordination Provisions established pursuant to Section 2.3(9) with respect to such series and,
without limitation to the foregoing, all moneys, U.S. Government Obligations and other securities
or property deposited with the Trustee (or other qualifying trustee) in trust in connection with
such satisfaction and discharge, defeasance or covenant defeasance, as the case may be, and all
proceeds therefrom may be applied to pay the principal of, premium, if any, and interest, if any,
on, and mandatory sinking fund payments, if any, with respect to the
Securities
53
of such series as and when the same shall become due and payable notwithstanding the
provisions of Section 11.13 or such Subordination Provisions.
ARTICLE XI
MISCELLANEOUS PROVISIONS
SECTION 11.1 INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS OF ISSUER EXEMPT FROM
INDIVIDUAL LIABILITY
. No recourse under or upon any obligation, covenant or agreement contained in this
Indenture, or in any Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such, or against any past, present or future stockholder, officer or
director, as such, of the Issuer or of any successor, either directly or through the Issuer or any
successor, under any rule of law, statute or constitutional provision or by the enforcement of any
assessment or by any legal or equitable proceeding or otherwise, all such liability being expressly
waived and released by the acceptance of the Securities and the Coupons, if any, appertaining
thereto by the Holders thereof and as part of the consideration for the issue of the Securities and
the Coupons appertaining thereto.
SECTION 11.2 PROVISIONS OF INDENTURE FOR THE SOLE BENEFIT OF PARTIES AND HOLDERS OF SECURITIES
AND COUPONS
. Nothing in this Indenture, in the Securities or in the Coupons appertaining thereto,
expressed or implied, shall give or be construed to give to any person, firm or corporation, other
than the parties thereto and their successors and the Holders of the Securities or Coupons, if any
and, in the case of the Subordinated Securities of any series, the holders of Senior Indebtedness
with respect to such series, any legal or equitable right, remedy or claim under this Indenture or
under any covenant or provision herein contained, all such covenants and provisions being for the
sole benefit of the parties hereto and their successors and of the Holders of the Securities or
Coupons, if any and, in the case of the Subordinated Securities of any series, the holders of
Senior Indebtedness with respect to such series.
SECTION 11.3 SUCCESSORS AND ASSIGNS OF ISSUER BOUND BY INDENTURE
. All the covenants, stipulations, promises and agreements in this Indenture contained by or
in behalf of the Issuer shall bind its successors and assigns, whether so expressed or not.
SECTION 11.4 NOTICES AND DEMANDS ON ISSUER, TRUSTEE AND HOLDERS OF SECURITIES AND COUPONS
. Any notice or demand which by any provision of this Indenture is required or permitted to
be given or served by the Trustee or by the Holders of Securities or Coupons, if any, to or on the
Issuer may be given or served by being deposited postage prepaid, first-class mail (except as
otherwise specifically provided herein) addressed (until another address of the Issuer is filed by
the Issuer with the Trustee) to McKesson Corporation, McKesson Plaza, One Post Street, San
Francisco, California 94104, Attention: Secretary. Any notice, direction, request or demand by
the Issuer or any Holder of Securities or Coupons, if any, to or upon the Trustee shall be deemed
to have been sufficiently given or served by being deposited postage prepaid, first-class mail
(except as otherwise specifically provided herein) addressed (until another address of the Trustee
is filed by the
54
Trustee with the Issuer) to The Bank of New York Trust Company, N.A., 700 S. Flower
Street, Suite 500, Los Angeles, California 90017, Attention: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of Registered Securities, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in writing and mailed,
first-class mail, postage prepaid, to each Holder entitled thereto, at his last address as it
appears in the Security register.
The Trustee agrees to accept and act upon facsimile transmission of written instructions
and/or directions pursuant to this Indenture given by the Company, provided, however that: (i) the
Company, subsequent to such facsimile transmission of written instructions and/or directions, shall
provide the originally executed instructions and/or directions to the Trustee in a timely manner
and (ii) such originally executed instructions and/or directions shall be signed by an authorized
officer of the Company.
Where this Indenture provides for notice to holders of Unregistered Securities, such notice
shall be sufficiently given (unless otherwise expressly provided herein) by giving notice to such
Holders (a) by publication of such notice at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York, and at least once in an Authorized Newspaper in London (and, if
required by Section 3.7, once in an Authorized Newspaper in Luxembourg), and (b) by mailing such
notice to the Holders of Unregistered Securities who have filed their names and addresses with the
Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act at such addresses as were so
furnished to the Trustee.
In any case where notice to such Holders is given by mail, neither the failure to mail such
notice, nor any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture provides for notice
in any manner, such notice may be waived in writing by the person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of such notice. Waivers
of notice by Holders shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail service, it shall be
impracticable to mail notice to the Issuer when such notice is required to the given pursuant to
any provision of this Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such notice.
SECTION 11.5 OFFICER’S CERTIFICATES AND OPINIONS OF COUNSEL; STATEMENTS TO BE CONTAINED
THEREIN
. Upon any application or demand by the Issuer to the Trustee to take any action under any of
the provisions of this Indenture, the Issuer shall furnish to the Trustee an Officer’s Certificate
stating that all conditions precedent provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent have been complied with, except that in the case of any such
application or demand as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand, no additional
certificate or opinion need be furnished.
55
Each certificate or opinion provided for in this Indenture and delivered to the Trustee
with respect to compliance with a condition or covenant provided for in this Indenture shall
include (a) a statement that the person making such certificate or opinion has read such covenant
or condition, (b) a brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion are based, (c) a
statement that, in the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with and (d) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the Issuer may be based, insofar
as it relates to legal matters, upon a certificate or opinion of or representations by counsel,
unless such officer knows that the certificate or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous. Any certificate,
statement or opinion of counsel may be based, insofar as it relates to factual matters or
information with respect to which is in the possession of the Issuer, upon the certificate,
statement or opinion of or representations by an officer or officers of the Issuer, unless such
counsel knows that the certificate, statement or opinion or representations with respect to the
matters upon which his certificate, statement or opinion may be based as aforesaid are erroneous,
or in the exercise of reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the Issuer or of counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or representations by
an accountant or firm of accountants in the employ of the Issuer, unless such officer or counsel,
as the case may be, knows that the certificate or opinion of or representations with respect to the
accounting matters upon which his certificate, statement or opinion may be based as aforesaid are
erroneous, or in the exercise of reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public accountants filed with and
directed to the Trustee shall contain a statement that such firm is independent.
SECTION 11.6 PAYMENTS DUE ON SATURDAYS, SUNDAYS AND HOLIDAYS
. If the date of maturity of interest on or principal of the Securities of any series or any
Coupons appertaining thereto or the date fixed for redemption or repayment of any such Security or
Coupon shall not be a Business Day, then payment of interest or principal need not be made on such
date, but may be made on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall accrue for the
period after such date.
SECTION 11.7 CONFLICT OF ANY PROVISION OF INDENTURE WITH TRUST INDENTURE ACT
. If and to the extent that any provision of this Indenture limits, qualifies or conflicts
with duties imposed by, or with another provision (an “incorporated provision”) included in this
Indenture by operation of Sections 310 to 318, inclusive, of the Trust Indenture Act, such imposed
duties or incorporated provision shall control.
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SECTION 11.8 NEW YORK LAW TO GOVERN; WAIVER OF JURY TRIAL
.
THIS INDENTURE AND EACH SECURITY AND COUPON SHALL BE DEEMED TO BE A CONTRACT UNDER THE LAWS
OF THE STATE OF NEW YORK, AND FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SUCH STATE, INCLUDING, WITHOUT LIMITATION, SECTIONS 5-1401 AND 5-1402 OF THE NEW
YORK GENERAL OBLIGATIONS LAW AND NEW YORK CIVIL PRACTICE LAWS AND RULES 327(b).
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED
BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO THIS INDENTURE, THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
SECTION 11.9 COUNTERPARTS
. This Indenture may be executed in any number of counterparts, each of which shall be an
original; but such counterparts shall together constitute but one and the same instrument.
SECTION 11.10 EFFECT OF HEADINGS
. The Article and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 11.11 SECURITIES IN A FOREIGN CURRENCY
. Unless otherwise specified in an Officer’s Certificate delivered pursuant to Section 2.3 of
this Indenture with respect to a particular series of Securities, whenever for purposes of this
Indenture any action may be taken by the Holders of a specified percentage in aggregate principal
amount of Securities of all series or all series affected by a particular action at the time
Outstanding and, at such time, there are Outstanding Securities of any series which are denominated
in a Foreign Currency, then the principal amount of Securities of such series which shall be deemed
to be Outstanding for the purpose of taking such action shall be that amount of Dollars that could
be obtained for such amount at the Market Exchange Rate. For purposes of this Section 11.11,
Market Exchange Rate shall mean the noon Dollar buying rate in The City of New York for cable
transfers of such currency or currencies as published by the Federal Reserve Bank of New York as of
the most recent available date. If such Market Exchange Rate is not available for any reason with
respect to such currency, the Trustee shall use, in its sole discretion and without liability on
its part, such quotation of the Federal Reserve Bank of New York or quotations from one or more
major banks in The City of New York or in the country of issue of the currency in question, which
for purposes of the euro shall be any member state of the European Union that has adopted the euro,
as the Trustee shall deem appropriate. The provisions of this paragraph shall apply in determining
the equivalent principal amount in respect of Securities of a series denominated in a currency
other than Dollars in connection with any action taken by Holders of Securities pursuant to the
terms of this Indenture.
All decisions and determinations of the Trustee regarding the Market Exchange Rate or any
alternative determination provided for in the preceding paragraph shall be in its sole discretion
and shall, in the absence of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
57
SECTION 11.12 JUDGMENT CURRENCY
. The Issuer agrees, to the fullest extent that it may effectively do so under applicable
law, that (a) if for the purpose of obtaining judgment in any court it is necessary to convert the
sum due in respect of the principal of or interest on the Securities of any series (the “Required
Currency”) into a currency in which a judgment will be rendered (the “Judgment Currency”), the rate
of exchange used shall be the rate at which in accordance with normal banking procedures the
Trustee could purchase in The City of New York the Required Currency with the Judgment Currency on
the day on which final unappealable judgment is entered, unless such day is not a New York Banking
Day, then, to the extent permitted by applicable law, the rate of exchange used shall be the rate
at which in accordance with normal banking procedures the Trustee could purchase in The City of New
York the Required Currency with the Judgment Currency on the New York Banking Day preceding the day
on which final unappealable judgment is entered and (b) its obligations under this Indenture to
make payments in the Required Currency (i) shall not be discharged or satisfied by any tender, or
any recovery pursuant to any judgment (whether or not entered in accordance with subsection (a)),
in any currency other than the Required Currency, except to the extent that such tender or recovery
shall result in the actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (ii) shall be enforceable as an alternative or
additional cause of action for the purpose of recovering in the Required Currency the amount, if
any, by which such actual receipt shall fall short of the full amount of the Required Currency so
expressed to be payable and (iii) shall not be affected by judgment being obtained for any other
sum due under this Indenture. For purposes of the foregoing, “New York Banking Day” means any day
except a Saturday, Sunday or a legal holiday in The City of New York or a day on which banking
institutions in The City of New York are authorized or required by law or executive order to close.
SECTION 11.13 AGREEMENT TO SUBORDINATE
. The Issuer, for itself, its successors and assigns, covenants and agrees, and each Holder
of Subordinated Securities of any series by his acceptance thereof, likewise covenants and agrees,
that the payment of the principal of (and premium, if any) and interest, if any, on, and mandatory
sinking fund payments, if any, in respect of each and all of the Subordinated Securities of such
series shall be expressly subordinated, to the extent and in the manner provided in the
Subordination Provisions established with respect to the Subordinated Securities of such series
pursuant to Section 2.3(9) hereof, in right of payment to the prior payment in full of all Senior
Indebtedness with respect to such series.
SECTION 11.14 FORCE MAJEURE.
In no event shall the Trustee be responsible or liable for any failure or delay in the
performance of its obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation, strikes, work stoppages, accidents, acts
of war or terrorism, civil or military disturbances, nuclear or natural catastrophes or acts of
God, and interruptions, loss or malfunctions of utilities, communications or computer (software and
hardware) services; it being understood that the Trustee shall use reasonable efforts which are
consistent with accepted practices in the banking industry to resume performance as soon as
practicable under the circumstances.
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ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
SECTION 12.1 APPLICABILITY OF ARTICLE
. The provisions of this Article shall be applicable to the Securities of any series which
are redeemable before their maturity or to any sinking fund for the retirement of Securities of a
series except as otherwise specified as contemplated by Section 2.3 for Securities of such series.
SECTION 12.2 NOTICE OF REDEMPTION; PARTIAL REDEMPTIONS
. Notice of redemption to the Holders of Registered Securities of any series to be redeemed
as a whole or in part at the option of the Issuer shall be given by mailing notice of such
redemption by first class mail, postage prepaid, at least 30 days and not more than 60 days prior
to the date fixed for redemption to such Holders of Securities of such series at their last
addresses as they shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed their names and
addresses with the Trustee pursuant to Section 313(c)(2) of the Trust Indenture Act shall be given
by mailing notice of such redemption, by first class mail, postage prepaid, at least 30 days and
not more than 60 prior to the date fixed for redemption, to such Holders at such addresses as were
so furnished to the Trustee (and, in the case of any such notice given by the Issuer, the Trustee
shall make such information available to the Issuer for such purpose). Notice of redemption to all
other Holders of Unregistered Securities shall be published in an Authorized Newspaper in the
Borough of Manhattan, The City of New York and in an Authorized Newspaper in London (and, if
required by Section 3.7, in an Authorized Newspaper in Luxembourg), in each case, once in each of
three successive calendar weeks, the first publication to be not less than 30 nor more than 60 days
prior to the date fixed for redemption. Any notice which is mailed in the manner herein provided
shall be conclusively presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the Holder of any Security
of a series designated for redemption as a whole or in part shall not affect the validity of the
proceedings for the redemption of such Security of such series.
The notice of redemption to each such Holder shall identify the Securities to be redeemed
(including CUSIP number(s)) and specify the aggregate principal amount of Securities of such series
to be redeemed, the date fixed for redemption, the redemption price, the place or places of
payment, that payment will be made upon presentation and surrender of such Securities and, in the
case of Securities with Coupons attached thereto, of all Coupons appertaining thereto maturing
after the date fixed for redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date fixed for redemption
will be paid as specified in such notice and that on and after said date interest thereon or on the
portions thereof to be redeemed will cease to accrue. In case any Security of a series is to be
redeemed in part only, the notice of redemption to Holders of Securities of the series shall state
the portion of the principal amount thereof to be redeemed and shall state that on and after the
date fixed for redemption, upon surrender of such Security, a new Security or Securities of such
series in principal amount equal to the unredeemed portion thereof will be issued.
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The notice of redemption of Securities of any series to be redeemed at the option of the
Issuer shall be given by the Issuer or, at the Issuer’s request, by the Trustee in the name and at
the expense of the Issuer.
On or before 11:00 a.m., New York City time, on the redemption date specified in the notice of
redemption given as provided in this Section, the Issuer will deposit with the Trustee or with one
or more paying agents (or, if the Issuer is acting as its own paying agent, set aside, segregate
and hold in trust as provided in Section 3.4) an amount of money sufficient to redeem on the
redemption date all the Securities of such series so called for redemption at the appropriate
redemption price, together with accrued interest to the date fixed for redemption. The Issuer will
deliver to the Trustee at least 70 days prior to the date fixed for redemption, or such shorter
period as shall be acceptable to the Trustee, an Officer’s Certificate stating the aggregate
principal amount of Securities to be redeemed. In case of a redemption at the election of the
Issuer prior to the expiration of any restriction on such redemption, the Issuer shall deliver to
the Trustee, prior to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer’s Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be redeemed, the Trustee shall select, in
such manner as it shall deemed appropriate and fair, in its sole discretion, Securities of such
series to be redeemed in whole or in part. Securities may be redeemed in part in multiples equal
to the minimum authorized denomination for Securities of such series or any multiple thereof. The
Trustee shall promptly notify the Issuer in writing of the Securities of such series selected for
redemption and, in the case of any Securities of such series selected for partial redemption, the
principal amount thereof to be redeemed. For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities of any series shall
relate, in the case of any Security redeemed or to be redeemed only in part, to the portion of the
principal amount of such Security which has been or is to be redeemed.
SECTION 12.3 PAYMENT OF SECURITIES CALLED FOR REDEMPTION
. If notice of redemption has been given as above provided, the Securities or portions of
Securities specified in such notice shall become due and payable on the date and at the place
stated in such notice at the applicable redemption price, together with interest accrued to the
date fixed for redemption, and on and after said date (unless the Issuer shall default in the
payment of such Securities at the redemption price, together with interest accrued to said date)
interest on the Securities or portions of Securities so called for redemption shall cease to
accrue, and the unmatured Coupons, if any, appertaining thereto shall be void, and, except as
provided in Sections 6.5 and 10.4, such Securities shall cease from and after the date fixed for
redemption to be entitled to any benefit or security under this Indenture, and the Holders thereof
shall have no right in respect of such Securities except the right to receive the redemption price
thereof and unpaid interest to the date fixed for redemption. On presentation and surrender of
such Securities at a place of payment specified in said notice, together with all Coupons, if any,
appertaining thereto maturing after the date fixed for redemption, said Securities or the specified
portions thereof shall be paid and redeemed by the Issuer at the applicable redemption price,
together with interest accrued thereon to the date fixed for redemption; provided, that payment of
interest becoming due on or prior to the date fixed for redemption shall be payable in the case of
Securities with Coupons attached thereto, to the Holders of the Coupons for such interest upon
surrender thereof, and in the case of Registered Securities, to the Holder of such Registered
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Securities registered as such on the relevant record date, subject to the terms and provisions
of Section 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid upon surrender thereof for
redemption, the principal shall, until paid or duly provided for, bear interest from the date fixed
for redemption at the rate of interest or Yield to Maturity (in the case of an Original Issue
Discount Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered for redemption and is not
accompanied by all appurtenant Coupons maturing after the date fixed for redemption, the surrender
of such missing Coupon or Coupons may be waived by the Issuer and the Trustee, if there be
furnished to each of them such security or indemnity as they may require to save each of them
harmless.
Upon presentation of any Security redeemed in part only, the Issuer shall execute and the
Trustee shall authenticate and deliver to or on the order of the Holder thereof, at the expense of
the Issuer, a new Security or Securities of such series, of authorized denominations, in principal
amount equal to the unredeemed portion of the Security so presented.
SECTION 12.4 EXCLUSION OF CERTAIN SECURITIES FROM ELIGIBILITY FOR SELECTION FOR REDEMPTION
. Securities shall be excluded from eligibility for selection for redemption if they are
identified by registration and certificate number in an Officer’s Certificate delivered to the
Trustee at least 40 days prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by, either (a) the Issuer or
(b) an entity specifically identified in such written statement as directly or indirectly
controlling or controlled by or under direct or indirect common control with the Issuer.
SECTION 12.5 MANDATORY AND OPTIONAL SINKING FUNDS
. The minimum amount of any sinking fund payment provided for by the terms of the Securities
of any series is herein referred to as a “mandatory sinking fund payment,” and any payment in
excess of such minimum amount provided for by the terms of the Securities of any series is herein
referred to as an “optional sinking fund payment.” The date on which a sinking fund payment is to
be made is herein referred to as the “sinking fund payment date.”
In lieu of making all or any part of any mandatory sinking fund payment with respect to any
series of Securities in cash, the Issuer may at its option (a) deliver to the Trustee Securities of
such series theretofore purchased or otherwise acquired (except upon redemption pursuant to the
mandatory sinking fund) by the Issuer or receive credit for Securities of such series (not
previously so credited) theretofore purchased or otherwise acquired (except as aforesaid) by the
Issuer and delivered to the Trustee for cancellation pursuant to Section 2.10, (b) receive credit
for optional sinking fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited) redeemed by the
Issuer through any optional redemption provision contained in the terms of such series. Securities
so delivered or credited shall be received or credited by the Trustee at the sinking fund
redemption price specified in such Securities.
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On or before the 60th day next preceding each sinking fund payment date for any series, the
Issuer will deliver to the Trustee an Officer’s Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the mandatory sinking fund payment to be
satisfied by payment of cash and the portion to be satisfied by credit of Securities of such series
and the basis for such credit, (b) stating that none of the Securities of such series has
theretofore been so credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived or cured) and are
continuing and (d) stating whether or not the Issuer intends to exercise its right to make an
optional sinking fund payment with respect to such series and, if so, specifying the amount of such
optional sinking fund payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and required to be
delivered to the Trustee in order for the Issuer to be entitled to credit therefor as aforesaid
which have not theretofore been delivered to the Trustee shall be delivered for cancellation
pursuant to Section 2.10 to the Trustee with such Officer’s Certificate (or reasonably promptly
thereafter if acceptable to the Trustee). Such Officer’s Certificate shall be irrevocable and upon
its receipt by the Trustee, the Issuer shall become unconditionally obligated to make all the cash
payments or payments therein referred to, if any, on or before the next succeeding sinking fund
payment date. Failure of the Issuer, on or before any such 60th day, to deliver such Officer’s
Certificate and Securities specified in this paragraph, if any, shall not constitute a default but
shall constitute, on and as of such date, the irrevocable election of the Issuer (i) that the
mandatory sinking fund payment for such series due on the next succeeding sinking fund payment date
shall be paid entirely in cash without the option to deliver or credit Securities of such series in
respect thereof and (ii) that the Issuer will make no optional sinking fund payment with respect to
such series as provided in this Section.
If the sinking fund payment or payments (mandatory or optional or both) to be made in cash on
the next succeeding sinking fund payment date plus any unused balance of any preceding sinking fund
payments made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign Currency) or a
lesser sum in Dollars (or the equivalent thereof in any Foreign Currency) if the Issuer shall so
request with respect to the Securities of any particular series, such cash shall be applied on the
next succeeding sinking fund payment date to the redemption of Securities of such series at the
sinking fund redemption price together with accrued interest to the date fixed for redemption. If
such amount shall be $50,000 (or the equivalent thereof in any Foreign Currency) or less and the
Issuer makes no such request then it shall be carried over until a sum in excess of $50,000 (or the
equivalent thereof in any Foreign Currency) is available. The Trustee shall select, in the manner
provided in Section 12.2, for redemption on such sinking fund payment date a sufficient principal
amount of Securities of such series to absorb said cash, as nearly as may be, and shall (if
requested in writing by the Issuer) inform the Issuer of the serial numbers of the Securities of
such series (or portions thereof) so selected. Securities shall be excluded from eligibility for
redemption under this Section if they are identified by registration and certificate number in an
Officer’s Certificate delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or hypothecated by, either (a)
the Issuer or (b) an entity specifically identified in such Officer’s Certificate as directly or
indirectly controlling or controlled by or under direct or indirect common control with the Issuer.
The Trustee, in the name and at the expense of the Issuer (or the Issuer, if it shall so request
the Trustee in writing) shall cause notice of redemption of the Securities of such series to be
given in substantially the manner provided in Section 12.2 (and
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with the effect provided in Section 12.3) for the redemption of Securities of such series in
part at the option of the Issuer. The amount of any sinking fund payments not so applied or
allocated to the redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied in accordance with
the provisions of this Section. Any and all sinking fund moneys held on the stated maturity date
of the Securities of any particular series (or earlier, if such maturity is accelerated), which are
not held for the payment or redemption of particular Securities of such series shall be applied,
together with other moneys, if necessary, sufficient for the purpose, to the payment of the
principal of, and interest on, the Securities of such series at maturity.
On or before each sinking fund payment date, the Issuer shall pay to the Trustee in cash or
shall otherwise provide for the payment of all interest accrued to the date fixed for redemption on
Securities to be redeemed on the next following sinking fund payment date.
The Trustee shall not redeem or cause to be redeemed any Securities of a series with sinking
fund moneys or give any notice of redemption of Securities for such series by operation of the
sinking fund during the continuance of a default in payment of interest on such Securities or of
any Event of Default except that, where the giving of notice of redemption of any Securities shall
theretofore have been made, the Trustee shall redeem or cause to be redeemed such Securities,
provided that it shall have received from the Issuer a sum sufficient for such redemption. Except
as aforesaid, any moneys in the sinking fund for such series at the time when any such default or
Event of Default shall occur, and any moneys thereafter paid into the sinking fund, shall, during
the continuance of such default or Event of Default be deemed to have been collected under Article
Five and held for the payment of all such Securities. In case such Event of Default shall have
been waived as provided in Section 5.10 or the default cured on or before the sixtieth day
preceding the sinking fund payment date in any year, such moneys shall thereafter be applied on the
next succeeding sinking fund payment date in accordance with this Section to the redemption of such
Securities.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed as of
the date first written above.
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MCKESSON CORPORATION
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By:
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/s/ Nicholas A. Loiacono
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Name: Nicholas A. Loiacono
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Title: Vice President and Treasurer
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THE BANK OF NEW YORK TRUST COMPANY, N.A., as Trustee
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By:
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/s/ Raymond Torres
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Name: Raymond Torres
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Title: Assistant Vice President
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Exhibit 4.2
OFFICER’S CERTIFICATE
The undersigned, McKesson Corporation, a Delaware corporation (the “Company”), hereby
certifies through Nicholas A. Loiacono, its Vice President and Treasurer, pursuant to Sections 2.1,
2.3 and 11.5 of the Indenture, dated as of March 5, 2007 (the “Indenture”), by and between the
Company, as Issuer, and The Bank of New York Trust Company, N.A., a national banking association,
as Trustee, as follows:
1. The form and terms of the 5.25% Notes due 2013 (the “2013 Notes”), as set forth on
Annex A
attached hereto, and the form and terms of the 5.70% Notes due 2017 (the “2017
Notes”), as set forth on
Annex B
attached hereto, have been established pursuant to
Sections 2.1 and 2.3 of the Indenture and comply with the Indenture.
2. The undersigned has read the Indenture.
3. The statements made in this certificate are based upon an examination of the 2013 Notes and
the 2017 Notes under the Indenture, upon an examination of and familiarity with the Indenture, upon
my general knowledge of and familiarity with the operations of the Company and upon the performance
of my duties as an officer of the Company.
4. In the opinion of the undersigned, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not the covenants and
conditions provided for in the Indenture have been complied with.
5. In the opinion of the undersigned, with respect to the foregoing, the covenants and
conditions provided for in the Indenture have been complied with.
Capitalized terms used herein without definition have the meanings assigned to them in the
Indenture.
IN WITNESS WHEREOF, the undersigned has caused this certificate to be executed by its duly
authorized officer as of this 5th day of March, 2007.
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McKESSON CORPORATION
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By:
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/s/ Nicholas A. Loiacono
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Nicholas A. Loiacono
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Vice President and Treasurer
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ANNEX A
Pursuant to Section 2.3 of the Indenture, dated as of March 5, 2007 (the “Indenture”), between
McKesson Corporation (the “Issuer”) and The Bank of New York Trust Company, N.A., a national
banking association, as trustee (the “Trustee”), the terms of a series of securities to be issued
pursuant to the Indenture are as follows:
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1.
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Designation
. The designation of the securities is
“5.25% Notes due March 1, 2013” (the “2013 Notes”).
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2.
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Initial Aggregate Principal Amount
. The 2013 Notes
shall be limited in initial aggregate principal amount to $500,000,000 (except
for 2013 Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other 2013 Notes pursuant to Section 2.8, 2.9,
2.11, 8.5 or 12.3 of the Indenture).
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3.
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Currency Denomination
. The 2013 Notes shall be
denominated in Dollars.
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4.
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Maturity
. The date on which the principal of the 2013
Notes is payable is March 1, 2013.
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5.
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Rate of Interest; Interest Payment Date; Regular Record
Dates
. Each 2013 Note shall bear interest from March 5, 2007 at 5.25% per
annum until the principal thereof is paid. Such interest shall be payable
semi-annually in arrears on March 1 and September 1 of each year, commencing on
September 1, 2007, to the persons in whose names the 2013 Notes are registered
at the close of business on the immediately preceding February 15 and August
15, respectively. Interest on the 2013 Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 5, 2007. Interest on the 2013 Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months. In the event that any date on
which principal, premium, if any, or interest is payable on the 2013 Notes is
not a Business Day, then payment of the principal, premium, if any, or interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay).
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6.
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Place of Payment
. Principal of, premium, if any, and
interest on the 2013 Notes shall be payable, and the transfer of the 2013 Notes
shall be registrable, at the office or agency of the Issuer to be maintained
for such purpose in the Borough of Manhattan, The City of New York, except
that, at the option of the Issuer, interest may be paid by mailing a check to
the address of the person entitled thereto as it appears on the 2013 Notes
register;
provided, however
, that while any 2013 Notes are represented by a
Registered Global Security, payment of principal of, premium, if any, or
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interest on the 2013 Notes may be made by wire transfer to the account of
the Depositary or its nominee.
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7.
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Optional Redemption
. The 2013 Notes may be redeemed,
in whole at any time or in part from time to time, at the option of the Issuer
at a redemption price equal to the greater of (i) 100% of their principal
amount and (ii) an amount, as determined by the Quotation Agent, equal to the
sum of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 15 basis points, plus, in each case, accrued
interest thereon to the date of redemption. Notwithstanding the foregoing,
installments of interest on 2013 Notes that are due and payable on interest
payment dates falling on or prior to a redemption date will be payable on the
interest payment date to the registered holders as of the close of business on
the relevant record date. Holders of the 2013 Notes to be redeemed will
receive notice thereof at least 30 and not more than 60 days prior to the date
fixed for redemption. Unless the Issuer defaults in payment of the redemption
price, on and after the redemption date, interest will cease to accrue on the
2013 Notes or portions thereof called for redemption. If less than all of the
2013 Notes are to be redeemed, the 2013 Notes to be redeemed will be selected
by the Trustee by a method the Trustee deems to be fair and appropriate.
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“Comparable Treasury Issue” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the 2013 Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of the 2013 Notes.
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“Comparable Treasury Price” means, with respect to any redemption date, (i)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
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“Quotation Agent” means the Reference Treasury Dealer appointed by the
Issuer.
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“Reference Treasury Dealer” means (i) Banc of America Securities LLC (or its
affiliates that are Primary Treasury Dealers) and its successors; provided,
however, that if any of the foregoing shall cease to be a primary U.S.
Government securities dealer in New York City (a “Primary Treasury
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Dealer”), the Issuer shall substitute therefor another Primary Treasury
Dealer; and (ii) any other Primary Treasury Dealer selected by the Issuer.
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“Reference Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third business day preceding that redemption date.
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“Treasury Rate” means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
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8.
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Change of Control
. If a Change of Control Triggering
Event occurs, unless the Issuer has exercised its right to redeem the 2013
Notes as described above, holders of the 2013 Notes will have the right to
require the Issuer to repurchase all or any part (equal to $1,000 or an
integral multiple of $1,000 in excess thereof) of their 2013 Notes pursuant to
the offer described below (the “Change of Control Offer”). In the Change of
Control Offer, the Issuer will be required to offer payment in cash equal to
101% of the aggregate principal amount of 2013 Notes repurchased plus accrued
and unpaid interest, if any, on the 2013 Notes repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any
Change of Control Triggering Event, the Issuer will be required to mail a
notice to holders of the 2013 Notes describing the transaction or transactions
that constitute the Change of Control Triggering Event and offering to
repurchase the 2013 Notes on the date specified in the notice, which date will
be no earlier than 30 days and no later than 60 days from the date such notice
is mailed (the “Change of Control Payment Date”), pursuant to the procedures
described herein and in such notice. The Issuer must comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the 2013 Notes as a result of a
Change of Control Triggering Event. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions
herein, the Issuer will be required to comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under the Change of Control provisions herein by virtue of such conflicts.
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On the Change of Control Payment Date, the Issuer will be required, to the
extent lawful, to (i) accept for payment all 2013 Notes or portions of 2013
Notes properly tendered pursuant to the Change of Control Offer; (ii)
deposit with the paying agent an amount equal to the Change of Control
Payment in respect of all 2013 Notes or portions of 2013 Notes properly
tendered; and (iii) deliver or cause to be delivered to the Trustee the 2013
Notes properly accepted together with an Officer’s Certificate stating the
aggregate principal amount of 2013 Notes or portions of 2013 Notes being
purchased.
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“Below Investment Grade Rating Event” means the 2013 Notes are rated below
an Investment Grade Rating by each of the Rating Agencies (as defined below)
on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following
public notice of the occurrence of the Change of Control (which 60-day
period shall be extended so long as the rating of the 2013 Notes is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies).
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“Change of Control” means the occurrence of any of the following: (1) the
direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Issuer and its Subsidiaries taken as a whole to any Person other than the
Issuer or one of its Subsidiaries; (2) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any Person becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of shares of the
Issuer’s voting stock; or (3) the first day on which a majority of the
members of the Issuer’s Board of Directors are not Continuing Directors.
Notwithstanding the foregoing, a transaction will not be deemed to be
involve a Change of Control if (i) the Issuer becomes a wholly owned
subsidiary of a holding company and (ii) the holders of the voting stock of
such holding company immediately following that transaction are
substantially the same as the holders of our voting stock immediately prior
to that transaction.
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“Change of Control Triggering Event” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event.
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“Continuing Directors” means, as of any date of determination, any member of
the Board of Directors of the Issuer who (1) was a member of such Board of
Directors on the date of original issue of this Security; or (2) was
nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of such
Board of Directors at the time of such nomination or election (either
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by a specific vote or by approval of the Issuer’s proxy statement in which
such member was named as a nominee for election as a director, without
objection to such nomination).
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“Fitch” means Fitch Ratings.
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“Investment Grade Rating” means a rating equal to or higher than BBB- (or
the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P.
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“Moody’s” means Moody’s Investors Service, Inc.
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“Person” has the meaning set forth in the Indenture and includes a “person”
as used in Section 13(d)(3) of the Exchange Act.
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“Rating Agencies” means (1) each of Fitch, Moody’s and S&P; and (2) if any
of Fitch, Moody’s or S&P ceases to rate the notes or fails to make a rating
of the notes publicly available for reasons outside of our control, a
“nationally recognized statistical rating organization” within the meaning
of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer
(as certified by a Board Resolution) as a replacement agency for Fitch,
Moody’s or S&P, or all of them, as the case may be.
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“S&P” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.
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9.
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Mandatory Redemption
. The 2013 Notes are not
mandatorily redeemable and are not entitled to the benefit of a sinking fund or
any analogous provisions.
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10.
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Denominations
. The 2013 Notes shall be issued
initially in minimum denominations of $1,000 and shall be issued in integral
multiples of $1,000 in excess thereof.
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11.
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Amount Payable Upon Acceleration
. The principal of the
2013 Notes shall be payable upon declaration of acceleration pursuant to
Section 5.1 of the Indenture.
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12.
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Payment Currency
. Principal and interest on the 2013
Notes shall be payable in Dollars.
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13.
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Payment Currency — Election
. The principal of and
interest on the 2013 Notes shall not be payable in a currency other than
Dollars.
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14.
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Payment Currency — Index
. The principal of and
interest on the 2013 Notes shall not be determined with reference to an index
based on a coin or currency.
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15.
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Registered Securities
. The 2013 Notes shall be issued
only as Registered Securities. The 2013 Notes shall be issuable as Registered
Global Securities.
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16.
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Additional Amounts
. The Issuer shall not pay
additional amounts on the 2013 Notes held by a Person that is not a U.S. Person
in respect of taxes or similar charges withheld or deducted.
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17.
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Definitive Certificates
. Section 2.8 of the Indenture
will govern the transferability of the 2013 Notes in definitive form.
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18.
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Registrar; Paying Agent; Depositary
. The Trustee shall
initially serve as the registrar and the paying agent for the 2013 Notes. The
Depository Trust Company shall initially serve as the Depositary for the
Registered Global Security representing the 2013 Notes.
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19.
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Events of Default; Covenants
. There shall be no
deletions from or modifications or additions to the Events of Default set forth
in Section 5.1 of the Indenture with respect to the 2013 Notes. There shall be
the following additions to the covenants of the Issuer set forth in Article III
of the Indenture with respect to the 2013 Notes:
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Limitation on Liens
. The Issuer covenants that, so long as any of the 2013
Notes remain outstanding, it shall not, nor shall it permit any Consolidated
Subsidiary to, create or assume any Indebtedness for money borrowed which is
secured by a mortgage, pledge, security interest or lien (“liens”) of or
upon any assets, whether now owned or hereafter acquired, of the Issuer or
any such Consolidated Subsidiary without equally and ratably securing the
2013 Notes by a lien ranking ratably with and equal to (or at the option of
the Issuer, senior to) such secured Indebtedness, except that the foregoing
restriction shall not apply to (a) liens on any assets of any corporation
existing at the time such corporation becomes a Consolidated Subsidiary; (b)
liens on any assets existing at the time of acquisition of such assets by
the Issuer or a Consolidated Subsidiary, or liens to secure the payment of
all or any part of the purchase price of such assets upon the acquisition of
such assets by the Issuer or a Consolidated Subsidiary or to secure any
indebtedness incurred or guaranteed by the Issuer or a Consolidated
Subsidiary prior to, at the time of, or within 360 days after such
acquisition (or in the case of real property, the completion of construction
(including any improvements on an existing asset) or commencement of full
operation of such asset, whichever is later), which indebtedness is incurred
or guaranteed for the purpose of financing all or
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any part of the purchase price thereof or, in the case of real property,
construction or improvements thereon; provided, however, that in the case of
any such acquisition, construction or improvement, the lien shall not apply
to any assets theretofore owned by the Issuer or a Consolidated Subsidiary,
other than, in the case of any such construction or improvement, any real
property on which the property so constructed, or the improvement, is
located, or to secure the payment of the purchase price of such assets, or
to secure indebtedness incurred or guaranteed by the Issuer or a
Consolidated Subsidiary for the purpose of financing the purchase price of
such assets or improvements or construction thereon, which indebtedness is
incurred or guaranteed prior to, at the time of or within 360 days after
such acquisition (or in the case of real property, completion of such
improvement or construction or commencement of full operation of such
property, whichever is later); (c) liens on any assets securing indebtedness
owed by any Consolidated Subsidiary to the Issuer or another wholly owned
Subsidiary; (d) liens on any assets of a corporation existing at the time
such corporation is merged into or consolidated with the Issuer or a
Subsidiary or at the time of a purchase, lease or other acquisition of the
assets of a corporation or firm as an entirety or substantially as an
entirety by the Issuer or a Subsidiary; (e) liens on any assets of the
Issuer or a Consolidated Subsidiary in favor of the United States of America
or any state thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof,
or in favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred or guaranteed for the
purpose of financing all or any part of the purchase price (or, in the case
of real property, the cost of construction) of the assets subject to such
liens (including, but not limited to, liens incurred in connection with
pollution control, industrial revenue or similar financing); (f) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any lien referred to in the foregoing
clauses (a) to (e), inclusive; provided, however, that the principal amount
of indebtedness secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the assets which secured the lien so extended,
renewed or replaced (plus improvements and construction on such real
property); (g) liens imposed by law, such as mechanics’, workmen’s,
repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other
similar liens arising in the ordinary course of business, or governmental
(federal, state or municipal) liens arising out of contracts for the sale of
products or services by the Issuer or any Consolidated Subsidiary, or
deposits or pledges to obtain the release of any of the foregoing liens; (h)
pledges, liens or deposits under worker’s compensation laws or similar
legislation and liens or judgments
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thereunder which are not currently dischargeable, or in connection with
bids, tenders, contracts (other than for the payment of money) or leases to
which the Issuer or any Consolidated Subsidiary is a party, or to secure
public or statutory obligations of the Issuer or any Consolidated
Subsidiary, or in connection with obtaining or maintaining self-insurance or
to obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Issuer or
any Consolidated Subsidiary is a party, or in litigation or other
proceedings such as, but not limited to, interpleader proceedings, and other
similar pledges, liens or deposits made or incurred in the ordinary course
of business; (i) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including liens arising out of judgements or awards against the
Issuer or any Consolidated Subsidiary with respect to which the Issuer or
such Consolidated Subsidiary is in good faith prosecuting an appeal or
proceedings for review or for which the time to make an appeal has not yet
expired; or final unappealable judgment liens which are satisfied within 15
days of the date of judgment; or liens incurred by the Issuer or any
Consolidated Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the Issuer or such
Consolidated Subsidiary is a party; (j) liens for taxes or assessments or
governmental charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings; landlord’s liens on property held under
lease; and any other liens or charges incidental to the conduct of the
business of the Issuer or any Consolidated Subsidiary or the ownership of
the assets of any of them which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Issuer, materially impair the use of such assets in
the operation of the business of the Issuer or such Consolidated Subsidiary
or the value of such assets for the purposes thereof; or (k) liens relating
to accounts receivable of the Issuer or any of its Subsidiaries which have
been sold, assigned or otherwise transferred to another Person in a
transaction classified as a sale of accounts receivable in accordance with
generally accepted accounting principles (to the extent the sale by the
Issuer or the applicable Subsidiary is deemed to give rise to a lien in
favor of the purchaser thereof in such accounts receivable or the proceeds
thereof). Notwithstanding the above, the Issuer or any Consolidated
Subsidiary may, without securing the 2013 Notes, create or assume any
Indebtedness which is secured by a lien which would otherwise be subject to
the foregoing restrictions, provided that at the time of such creation or
assumption, after giving effect thereto, Exempted Debt does not exceed 10%
of the total assets of the Issuer and its Subsidiaries on a consolidated
basis, determined in accordance with generally accepted accounting
principles.
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A-8
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Limitation on Sale and Lease-Back Transactions
. The Issuer covenants that,
so long as any of the 2013 Notes remain outstanding, the Issuer will not,
nor shall the Issuer permit any Consolidated Subsidiary to, enter into any
sale and lease-back transaction with respect to any assets, other than any
sale lease-back transaction (involving a lease for a term of not more than
three years), unless either (a) the Issuer or such Consolidated Subsidiary
would be entitled to incur Indebtedness secured by a lien on the assets to
be leased in an amount at least equal to the Attributable Debt in respect of
such transaction without equally and ratably securing the 2013 Notes
pursuant to clauses (a) through (j) inclusive of the covenant with respect
to “Limitation on Liens” above, or (b) the proceeds of the sale of the
assets to be leased are at least equal to their fair market value (as
determined by the Board of Directors of the Issuer) and the proceeds are
applied to the purchase or acquisition (or, in the case of real property,
the construction) of assets or to the retirement (other than at maturity or
pursuant to a mandatory sinking fund or mandatory redemption provision) of
indebtedness. The foregoing limitation shall not apply, if at the time the
Issuer or any Consolidated Subsidiary enters into such sale and lease-back
transaction, and after giving effect thereto, Exempted Debt does not exceed
10% of the total assets of the Issuer and its Subsidiaries on a consolidated
basis, determined in accordance with generally accepted accounting
principles.
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The term “Attributable Debt” in connection with a sale and lease-back
transaction shall mean, as of the date of determination, the lesser of (a)
the fair value of the assets subject to such transaction, as determined by
McKesson’s Board of Directors, or (b) the present value (discounted at the
rate of interest set forth in or implicit in the terms of such lease or, if
it is not practicable to determine such rate, the weighted average interest
rate per annum borne by all series of Securities then Outstanding and
subject to the “Limitation on Sale and Lease-back Transactions” covenant
above compounded semi-annually, in either case as determined by the
principal accounting or financial officer of the Issuer) of the obligations
of the Issuer or any Consolidated Subsidiary for net rental payments during
the remaining term of all leases (including any period for which such lease
has been extended or may, at the option of the lessor, be extended).
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The term “Consolidated Subsidiary” shall mean any Subsidiary substantially
all the property of which is located, and substantially all the operations
of which are conducted, in the United States of America whose financial
statements are consolidated with those of the Issuer in accordance with
generally accepted accounting principles.
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The term “Exempted Debt” shall mean the sum of the following as of the date
of determination: (i) Indebtedness of the Issuer and its Consolidated
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A-9
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Subsidiaries incurred after the date of issuance of the Notes and secured by
liens not permitted to be created or assumed pursuant to the covenant with
respect to “Limitation on Liens” above, and (ii) Attributable Debt of the
Issuer and its Consolidated Subsidiaries in respect of every sale and
lease-back transaction entered into after the date of issuance of the Notes,
other than leases expressly permitted by the covenant with respect to
“Limitation on Sale and Lease-Back Transactions” above.
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The term “Indebtedness” shall mean all items classified as indebtedness on
the most recently available consolidated balance sheet of the Issuer and its
Consolidated Subsidiaries, in accordance with generally accepted accounting
principles.
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The term “net rental payments” under any lease of any period shall mean the
sum of the rental and other payments required to be paid in such period by
the lessee thereunder, not including, however, any amounts required to be
paid by such lessee (whether or not designated as rental or additional
rental) on account of maintenance and repairs, reconstruction, insurance,
taxes, assessments, water rates or similar charges required to be paid by
such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar
charges.
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The term “Subsidiary” shall mean any corporation of which at least a
majority of the outstanding stock having voting power under ordinary
circumstances for the election of the board of directors of such corporation
shall at the time be owned by the Issuer or by the Issuer and one or more
Subsidiaries or by one or more Subsidiaries.
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20.
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Conversion and Exchange
. The 2013 Notes shall not be
convertible into or exchangeable into any other security.
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21.
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Further Issues
. The Issuer may, without notice to or
the consent of the holders of the 2013 Notes, create and issue further notes
ranking equally and ratably with the 2013 Notes in all respects, or in all
respects except for the payment of interest accruing prior to the issue date of
such further notes. Such further notes shall be consolidated and form a single
series with the 2013 Notes and shall have the same terms as to status,
redemption or otherwise as the 2013 Notes.
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23.
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Other Terms
. The 2013 Notes shall have the other terms
and shall be substantially in the form set forth in the form of the 2013 Notes
attached hereto as Annex A-1. In case of any conflict between this Annex A and
the 2013 Notes, the form of the 2013 Notes shall control.
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A-10
Capitalized terms used but not otherwise defined in this Annex A shall have the respective
meanings ascribed to such terms in the Indenture.
A-11
ANNEX A-1
[FORM OF 2013 NOTE]
THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS REGISTERED
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
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No. 1
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CUSIP NO. 581557 AU9
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McKESSON CORPORATION
5.25% NOTES DUE MARCH 1, 2013
McKesson Corporation, a Delaware corporation (the “Issuer,” which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to, Cede & Co., or registered assigns, the principal sum of Five Hundred Million Dollars
($500,000,000) on March 1, 2013 and to pay interest on said principal sum from March 5, 2007, or
from the most recent interest payment date to which interest has been paid or duly provided for,
semi-annually in arrears on March 1 and September 1 (each such date, an “Interest Payment Date”) of
each year commencing on September 1, 2007, at the rate of 5.25% per annum until the principal
hereof shall have become due and payable.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year comprised of twelve 30-day months. In the event that any date on which the
principal or interest payable on this Note is not a Business Day, then payment of principal or
interest payable on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of such delay). The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note
is registered at the close of business on the record date for such interest installment, which
shall be the close of business on the immediately preceding February 15 and August 15 prior to such
Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered holders on such record date and
may be paid to the person in whose name this Note is registered at the close of business on a
subsequent record date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest), notice whereof shall be given by mail by or on behalf of the
Issuer to the registered holders of Notes not less than 15 days preceding such subsequent record
date, all as more fully provided in the Indenture. The principal of and the interest on this Note
shall be payable at the office or agency of the Issuer maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal tender for payment of
public and private debts;
provided, however,
that payment of interest may be made at the option of
the Issuer by check mailed to the person entitled thereto at such address as shall appear in the
registry books of the
Issuer;
provided, further
that for so long as this Note is represented by a Registered Global
Security, payment of principal, premium, if any, or interest on this Note may be made by wire
transfer to the account of the Depositary or its nominee.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
Capitalized terms used in this Note which are defined in the Indenture shall have the
respective meanings assigned to them in the Indenture.
The provisions of this Note are continued on the reverse side hereof and such continued
provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or in
facsimile, and an imprint or facsimile of its corporate seal to be imprinted hereon.
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McKESSON CORPORATION
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By:
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Name:
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Nicholas A. Loiacono
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Title:
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Vice President and Treasurer
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Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK TRUST COMPANY, N.A.
as Trustee
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By:
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Authorized Signatory
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Dated:
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[REVERSE SIDE OF NOTE]
This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer
designated as its 5.25% Notes due March 1, 2013 (the “Notes”). The Securities are all issued or
to be issued under and pursuant to an Indenture, dated as of March 5, 2007 (the “Indenture”), duly
executed and delivered between the Issuer and The Bank of New York Trust Company, N.A., a national
banking association (the “Trustee,” which term includes any successor Trustee with respect to the
Securities under the Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of the Issuer, the
Trustee and the holders of the Securities and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual series of Securities may vary with respect to
interest rate or interest rate formulas, issue dates, maturity, redemption, repayment, currency of
payment and otherwise.
The Notes are issuable only as Registered Securities in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes as requested by the holder surrendering the same.
Except as set forth below, this Note is not redeemable and is not entitled to the benefit of a
sinking fund or any analogous provision.
The Notes may be redeemed, in whole at any time or in part from time to time, at the option of
the Issuer at a redemption price equal to the greater of (i) 100% of their principal amount and
(ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the
remaining scheduled payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption), discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 15 basis points, plus, in each case, accrued interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on
interest payment dates falling on or prior to a redemption date will be payable on the interest
payment date to the registered holders as of the close of business on the relevant record date.
Holders of the Notes will receive notice thereof at least 30 and not more than 60 days prior to the
date fixed for redemption. Unless the Issuer defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Notes or portions thereof called
for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be
selected by the Trustee by a method the Trustee deems to be fair and appropriate.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Banc of America Securities LLC (or its affiliates that
are Primary Treasury Dealers) and its successors; provided, however, that if any of the
1
foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
If a Change of Control Triggering Event occurs, unless the Issuer has exercised its right to
redeem the Notes as described above, holders of the Notes will have the right to require the Issuer
to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof)
of their Notes pursuant to the offer described below (the “Change of Control Offer”). In the
Change of Control Offer, the Issuer will be required to offer payment in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the
Notes repurchased, to the date of purchase (the “Change of Control Payment”). Within 30 days
following any Change of Control Triggering Event, the Issuer will be required to mail a notice to
holders of the Notes describing the transaction or transactions that constitute the Change of
Control Triggering Event and offering to repurchase the Notes on the date specified in the notice,
which date will be no earlier than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”), pursuant to the procedures described herein and in
such notice. The Issuer must comply with the requirements of Rule 14e-1 under the Exchange Act and
any other Notes laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Triggering Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions herein, the Issuer will be required to comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
under the Change of Control provisions herein by virtue of such conflicts.
On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of
Control Offer; (ii) deposit with the paying agent an amount equal to the Change of Control Payment
in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating
the aggregate principal amount of Notes or portions of Notes being purchased.
“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade
Rating by each of the Rating Agencies (as defined below) on any date from the date of the public
notice of an arrangement that could result in a Change of Control until the end of the 60-day
period following public notice of the occurrence of the Change of Control (which 60-day period
shall be extended so long as the rating of the Notes is under publicly announced consideration for
possible downgrade by any of the Rating Agencies).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Issuer
2
and its Subsidiaries taken as a whole to any Person other than the Issuer or one of its
Subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock;
or (3) the first day on which a majority of the members of the Issuer’s Board of Directors are not
Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to be
involve a Change of Control if (i) the Issuer becomes a wholly owned subsidiary of a holding
company and (ii) the holders of the voting stock of such holding company immediately following that
transaction are substantially the same as the holders of our voting stock immediately prior to that
transaction.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
“Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Issuer who (1) was a member of such Board of Directors on the date of original
issue of this Security; or (2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election (either by a specific vote or by approval of
the Issuer’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Fitch” means Fitch Ratings.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by
Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Moody’s” means Moody’s Investors Service, Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” as used in Section
13(d)(3) of the Exchange Act.
“Rating Agencies” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s
or S&P ceases to rate the notes or fails to make a rating of the notes publicly available for
reasons outside of our control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer (as
certified by a Board Resolution) as a replacement agency for Fitch, Moody’s or S&P, or all of them,
as the case may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal
of all the Notes may be declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Senior Securities or
Subordinated Securities, as the case may be, of all series issued under such Indenture then
outstanding and affected (each voting as one class), to add any provisions to, or change in any
manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the
rights of the holders of the Securities of each series or Coupons so affected;
provided
that the
Issuer and the Trustee may not,
3
without the consent of the holder of each Outstanding Security affected thereby, (i) extend
the final maturity of the principal of any Security or reduce the principal amount thereof or
premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or change the currency in which the principal
thereof (other than as otherwise may be provided with respect to such series), premium, if any, or
interest thereon is payable or reduce the amount of the principal of any Original Issue Discount
Security that is payable upon acceleration or provable in bankruptcy, or in the case of
Subordinated Securities of any series, modify any of the subordination provisions or the definition
of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such
Subordinated Securities, or alter certain provisions of the Indenture relating to Securities not
denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of
any Securityholder to institute suit for the enforcement of any payment thereof when due or, if the
Securities provide therefor, any right of repayment at the option of the Securityholder or (ii)
reduce the aforesaid percentage in principal amount of Securities of any series issued under the
Indenture, the consent of the holders of which is required for any such modification. It is also
provided in the Indenture that, with respect to certain defaults or Events of Default regarding the
Securities of any series, the holders of a majority in aggregate principal amount Outstanding of
the Securities of each such series, each such series voting as a separate class (or, of all
Securities, as the case may be voting as a single class) may under certain circumstances waive all
defaults with respect to each such series (or with respect to all the Securities, as the case may
be) and rescind and annul a declaration of default and its consequences, but no such waiver or
rescission and annulment shall extend to or affect any subsequent default or shall impair any right
consequent thereto. The preceding sentence shall not, however, apply to a default in the payment
of the principal of or interest on any of the Securities.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note may be registered on the registry books of the Issuer, upon surrender of this
Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer
for such purpose in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee
and any agent of the Issuer or the Trustee may treat the person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
4
[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED
GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Registered Global Securities
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Principal Amount
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of Notes
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by which this
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Registered Global
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Security is to be
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Remaining Principal
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Reduced or Increased,
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Amount of this
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and Reason for
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Registered
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Date
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Reduction or Increase
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Global Security
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Notation Made By
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5
ANNEX B
Pursuant to Section 2.3 of the Indenture, dated as of March 5, 2007 (the “Indenture”), between
McKesson Corporation (the “Issuer”) and The Bank of New York Trust Company, N.A., a national
banking association, as trustee (the “Trustee”), the terms of a series of securities to be issued
pursuant to the Indenture are as follows:
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1.
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Designation
. The designation of the securities is
“5.70% Notes due March 1, 2017” (the “2017 Notes”).
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2.
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Initial Aggregate Principal Amount
. The 2017 Notes
shall be limited in initial aggregate principal amount to $500,000,000 (except
for 2017 Notes authenticated and delivered upon registration of transfer of, or
in exchange for, or in lieu of, other 2017 Notes pursuant to Section 2.8, 2.9,
2.11, 8.5 or 12.3 of the Indenture).
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3.
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Currency Denomination
. The 2017 Notes shall be
denominated in Dollars.
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4.
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Maturity
. The date on which the principal of the 2017
Notes is payable is March 1, 2017.
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5.
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Rate of Interest; Interest Payment Date; Regular Record
Dates
. Each 2017 Note shall bear interest from March 5, 2007 at 5.70% per
annum until the principal thereof is paid. Such interest shall be payable
semi-annually in arrears on March 1 and September 1 of each year, commencing on
September 1, 2007, to the persons in whose names the 2017 Notes are registered
at the close of business on the immediately preceding February 15 and August
15, respectively. Interest on the 2017 Notes shall accrue from the most recent
date to which interest has been paid or, if no interest has been paid, from
March 5, 2007. Interest on the 2017 Notes shall be computed on the basis of a
360-day year comprised of twelve 30-day months. In the event that any date on
which principal, premium, if any, or interest is payable on the 2017 Notes is
not a Business Day, then payment of the principal, premium, if any, or interest
payable on such date will be made on the next succeeding day that is a Business
Day (and without any interest or other payment in respect of any such delay).
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6.
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Place of Payment
. Principal of, premium, if any, and
interest on the 2017 Notes shall be payable, and the transfer of the 2017 Notes
shall be registrable, at the office or agency of the Issuer to be maintained
for such purpose in the Borough of Manhattan, The City of New York, except
that, at the option of the Issuer, interest may be paid by mailing a check to
the address of the person entitled thereto as it appears on the 2017 Notes
register;
provided, however
, that while any 2017 Notes are represented by a
Registered Global Security, payment of principal of, premium, if any, or
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B-1
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interest on the 2017 Notes may be made by wire transfer to the account of
the Depositary or its nominee.
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7.
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Optional Redemption
. The 2017 Notes may be redeemed,
in whole at any time or in part from time to time, at the option of the Issuer
at a redemption price equal to the greater of (i) 100% of their principal
amount and (ii) an amount, as determined by the Quotation Agent, equal to the
sum of the present values of the remaining scheduled payments of principal and
interest thereon (not including any portion of such payments of interest
accrued as of the date of redemption), discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day
months) at the Treasury Rate plus 20 basis points, plus, in each case, accrued
interest thereon to the date of redemption. Notwithstanding the foregoing,
installments of interest on 2017 Notes that are due and payable on interest
payment dates falling on or prior to a redemption date will be payable on the
interest payment date to the registered holders as of the close of business on
the relevant record date according to the 2017 Notes and the Indenture.
Holders of the 2017 Notes to be redeemed will receive notice thereof at least
30 and not more than 60 days prior to the date fixed for redemption. Unless
the Issuer defaults in payment of the redemption price, on and after the
redemption date, interest will cease to accrue on the 2017 Notes or portions
thereof called for redemption. If less than all of the 2017 Notes are to be
redeemed, the 2017 Notes to be redeemed will be selected by the Trustee by a
method the Trustee deems to be fair and appropriate.
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“Comparable Treasury Issue” means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the
remaining term of the 2017 Notes that would be utilized, at the time of
selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the
remaining term of the 2017 Notes.
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“Comparable Treasury Price” means, with respect to any redemption date, (i)
the average of four Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than four such Reference
Treasury Dealer Quotations, the average of all such quotations.
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“Quotation Agent” means the Reference Treasury Dealer appointed by the
Issuer.
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“Reference Treasury Dealer” means (i) Banc of America Securities LLC (or its
respective affiliates that are Primary Treasury Dealers) and its successors;
provided, however, that if any of the foregoing shall cease to
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B-2
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be a primary U.S. Government securities dealer in New York City (a “Primary
Treasury Dealer”), the Issuer shall substitute therefor another Primary
Treasury Dealer; and (ii) any other Primary Treasury Dealer selected by the
Issuer.
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“Reference Treasury Dealer Quotations” means, with respect to each Reference
Treasury Dealer and any redemption date, the average, as determined by the
Trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New
York City time, on the third business day preceding that redemption date.
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“Treasury Rate” means, with respect to any redemption date, the rate per
annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury
Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
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8.
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Change of Control
. If a Change of Control Triggering
Event occurs, unless the Issuer has exercised its right to redeem the 2017
Notes as described above, holders of the 2017 Notes will have the right to
require the Issuer to repurchase all or any part (equal to $1,000 or an
integral multiple of $1,000 in excess thereof) of their 2017 Notes pursuant to
the offer described below (the “Change of Control Offer”). In the Change of
Control Offer, the Issuer will be required to offer payment in cash equal to
101% of the aggregate principal amount of 2017 Notes repurchased plus accrued
and unpaid interest, if any, on the 2017 Notes repurchased, to the date of
purchase (the “Change of Control Payment”). Within 30 days following any Change
of Control Triggering Event, the Issuer will be required to mail a notice to
holders of the 2017 Notes describing the transaction or transactions that
constitute the Change of Control Triggering Event and offering to repurchase
the 2017 Notes on the date specified in the notice, which date will be no
earlier than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”), pursuant to the procedures
described herein and in such notice. The Issuer must comply with the
requirements of Rule 14e-1 under the Exchange Act and any other securities laws
and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the 2017 Notes as a result of a
Change of Control Triggering Event. To the extent that the provisions of any
securities laws or regulations conflict with the Change of Control provisions
herein, the Issuer will be required to comply with the applicable securities
laws and regulations and will not be deemed to have breached its obligations
under the Change of Control provisions herein by virtue of such conflicts.
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B-3
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On the Change of Control Payment Date, the Issuer will be required, to the
extent lawful, to (i) accept for payment all 2017 Notes or portions of 2017
Notes properly tendered pursuant to the Change of Control Offer; (ii)
deposit with the paying agent an amount equal to the Change of Control
Payment in respect of all 2017 Notes or portions of 2017 Notes properly
tendered; and (iii) deliver or cause to be delivered to the Trustee the 2017
Notes properly accepted together with an Officer’s Certificate stating the
aggregate principal amount of 2017 Notes or portions of 2017 Notes being
purchased.
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“Below Investment Grade Rating Event” means the 2017 Notes are rated below
an Investment Grade Rating by each of the Rating Agencies (as defined below)
on any date from the date of the public notice of an arrangement that could
result in a Change of Control until the end of the 60-day period following
public notice of the occurrence of the Change of Control (which 60-day
period shall be extended so long as the rating of the 2017 Notes is under
publicly announced consideration for possible downgrade by any of the Rating
Agencies).
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“Change of Control” means the occurrence of any of the following: (1) the
direct or indirect sale, transfer, conveyance or other disposition (other
than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the
Issuer and its Subsidiaries taken as a whole to any Person other than the
Issuer or one of its Subsidiaries; (2) the consummation of any transaction
(including, without limitation, any merger or consolidation) the result of
which is that any Person becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of shares of the
Issuer’s voting stock; or (3) the first day on which a majority of the
members of the Issuer’s Board of Directors are not Continuing Directors.
Notwithstanding the foregoing, a transaction will not be deemed to be
involve a Change of Control if (i) the Issuer becomes a wholly owned
subsidiary of a holding company and (ii) the holders of the voting stock of
such holding company immediately following that transaction are
substantially the same as the holders of our voting stock immediately prior
to that transaction.
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“Change of Control Triggering Event” means the occurrence of both a Change
of Control and a Below Investment Grade Rating Event.
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“Continuing Directors” means, as of any date of determination, any member of
the Board of Directors of the Issuer who (1) was a member of such Board of
Directors on the date of original issue of this Security; or (2) was
nominated for election or elected to such Board of Directors with the
approval of a majority of the Continuing Directors who were members of
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B-4
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such Board of Directors at the time of such nomination or election (either
by a specific vote or by approval of the Issuer’s proxy statement in which
such member was named as a nominee for election as a director, without
objection to such nomination).
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“Fitch” means Fitch Ratings.
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“Investment Grade Rating” means a rating equal to or higher than BBB- (or
the equivalent) by Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or
the equivalent) by S&P.
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“Moody’s” means Moody’s Investors Service, Inc.
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“Person” has the meaning set forth in the Indenture and includes a “person”
as used in Section 13(d)(3) of the Exchange Act.
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“Rating Agencies” means (1) each of Fitch, Moody’s and S&P; and (2) if any
of Fitch, Moody’s or S&P ceases to rate the notes or fails to make a rating
of the notes publicly available for reasons outside of our control, a
“nationally recognized statistical rating organization” within the meaning
of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer
(as certified by a Board Resolution) as a replacement agency for Fitch,
Moody’s or S&P, or all of them, as the case may be.
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“S&P” means Standard & Poor’s Ratings Services, a division of The
McGraw-Hill Companies, Inc.
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9.
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Mandatory Redemption
. The 2017 Notes are not
mandatorily redeemable and are not entitled to the benefit of a sinking fund or
any analogous provisions.
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10.
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Denominations
. The 2017 Notes shall be issued
initially in minimum denominations of $1,000 and shall be issued in integral
multiples of $1,000 in excess thereof.
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11.
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Amount Payable Upon Acceleration
. The principal of the
2017 Notes shall be payable upon declaration of acceleration pursuant to
Section 5.1 of the Indenture.
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12.
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Payment Currency
. Principal and interest on the 2017
Notes shall be payable in Dollars.
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13.
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Payment Currency — Election
. The principal of and
interest on the 2017 Notes shall not be payable in a currency other than
Dollars.
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B-5
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14.
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Payment Currency — Index
. The principal of and
interest on the 2017 Notes shall not be determined with reference to an index
based on a coin or currency.
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15.
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Registered Securities
. The 2017 Notes shall be issued
only as Registered Securities. The 2017 Notes shall be issuable as Registered
Global Securities.
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16.
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Additional Amounts
. The Issuer shall not pay
additional amounts on the 2017 Notes held by a Person that is not a U.S. Person
in respect of taxes or similar charges withheld or deducted.
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17.
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Definitive Certificates
. Section 2.8 of the Indenture
will govern the transferability of the 2017 Notes in definitive form.
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18.
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Registrar; Paying Agent; Depositary
. The Trustee shall
initially serve as the registrar and the paying agent for the 2017 Notes. The
Depository Trust Company shall initially serve as the Depositary for the
Registered Global Security representing the 2017 Notes.
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19.
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Events of Default; Covenants
. There shall be no
deletions from or modifications or additions to the Events of Default set forth
in Section 5.1 of the Indenture with respect to the 2017 Notes. There shall be
the following additions to the covenants of the Issuer set forth in Article III
of the Indenture with respect to the 2017 Notes:
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Limitation on Liens
. The Issuer covenants that, so long as any of the 2017
Notes remain outstanding, it shall not, nor shall it permit any Consolidated
Subsidiary to, create or assume any Indebtedness for money borrowed which is
secured by a mortgage, pledge, security interest or lien (“liens”) of or
upon any assets, whether now owned or hereafter acquired, of the Issuer or
any such Consolidated Subsidiary without equally and ratably securing the
2017 Notes by a lien ranking ratably with and equal to (or at the option of
the Issuer, senior to) such secured Indebtedness, except that the foregoing
restriction shall not apply to (a) liens on any assets of any corporation
existing at the time such corporation becomes a Consolidated Subsidiary; (b)
liens on any assets existing at the time of acquisition of such assets by
the Issuer or a Consolidated Subsidiary, or liens to secure the payment of
all or any part of the purchase price of such assets upon the acquisition of
such assets by the Issuer or a Consolidated Subsidiary or to secure any
indebtedness incurred or guaranteed by the Issuer or a Consolidated
Subsidiary prior to, at the time of, or within 360 days after such
acquisition (or in the case of real property, the completion of construction
(including any improvements on an existing asset) or commencement of full
operation of such asset, whichever is later), which indebtedness is incurred
or guaranteed for the purpose of financing all or
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B-6
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any part of the purchase price thereof or, in the case of real property,
construction or improvements thereon; provided, however, that in the case of
any such acquisition, construction or improvement, the lien shall not apply
to any assets theretofore owned by the Issuer or a Consolidated Subsidiary,
other than, in the case of any such construction or improvement, any real
property on which the property so constructed, or the improvement, is
located, or to secure the payment of the purchase price of such assets, or
to secure indebtedness incurred or guaranteed by the Issuer or a
Consolidated Subsidiary for the purpose of financing the purchase price of
such assets or improvements or construction thereon, which indebtedness is
incurred or guaranteed prior to, at the time of or within 360 days after
such acquisition (or in the case of real property, completion of such
improvement or construction or commencement of full operation of such
property, whichever is later); (c) liens on any assets securing indebtedness
owed by any Consolidated Subsidiary to the Issuer or another wholly owned
Subsidiary; (d) liens on any assets of a corporation existing at the time
such corporation is merged into or consolidated with the Issuer or a
Subsidiary or at the time of a purchase, lease or other acquisition of the
assets of a corporation or firm as an entirety or substantially as an
entirety by the Issuer or a Subsidiary; (e) liens on any assets of the
Issuer or a Consolidated Subsidiary in favor of the United States of America
or any state thereof, or any department, agency or instrumentality or
political subdivision of the United States of America or any State thereof,
or in favor of any other country, or any political subdivision thereof, to
secure partial, progress, advance or other payments pursuant to any contract
or statute or to secure any indebtedness incurred or guaranteed for the
purpose of financing all or any part of the purchase price (or, in the case
of real property, the cost of construction) of the assets subject to such
liens (including, but not limited to, liens incurred in connection with
pollution control, industrial revenue or similar financing); (f) any
extension, renewal or replacement (or successive extensions, renewals or
replacements), in whole or in part, of any lien referred to in the foregoing
clauses (a) to (e), inclusive; provided, however, that the principal amount
of indebtedness secured thereby shall not exceed the principal amount of
indebtedness so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the assets which secured the lien so extended,
renewed or replaced (plus improvements and construction on such real
property); (g) liens imposed by law, such as mechanics’, workmen’s,
repairmen’s, materialmen’s, carriers’, warehousemen’s, vendors’ or other
similar liens arising in the ordinary course of business, or governmental
(federal, state or municipal) liens arising out of contracts for the sale of
products or services by the Issuer or any Consolidated Subsidiary, or
deposits or pledges to obtain the release of any of the foregoing liens; (h)
pledges, liens or deposits under worker’s compensation laws or similar
legislation and liens or judgments
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B-7
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thereunder which are not currently dischargeable, or in connection with
bids, tenders, contracts (other than for the payment of money) or leases to
which the Issuer or any Consolidated Subsidiary is a party, or to secure
public or statutory obligations of the Issuer or any Consolidated
Subsidiary, or in connection with obtaining or maintaining self-insurance or
to obtain the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar
matters, or to secure surety, appeal or customs bonds to which the Issuer or
any Consolidated Subsidiary is a party, or in litigation or other
proceedings such as, but not limited to, interpleader proceedings, and other
similar pledges, liens or deposits made or incurred in the ordinary course
of business; (i) liens created by or resulting from any litigation or other
proceeding which is being contested in good faith by appropriate
proceedings, including liens arising out of judgements or awards against the
Issuer or any Consolidated Subsidiary with respect to which the Issuer or
such Consolidated Subsidiary is in good faith prosecuting an appeal or
proceedings for review or for which the time to make an appeal has not yet
expired; or final unappealable judgment liens which are satisfied within 15
days of the date of judgment; or liens incurred by the Issuer or any
Consolidated Subsidiary for the purpose of obtaining a stay or discharge in
the course of any litigation or other proceeding to which the Issuer or such
Consolidated Subsidiary is a party; (j) liens for taxes or assessments or
governmental charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good
faith by appropriate proceedings; landlord’s liens on property held under
lease; and any other liens or charges incidental to the conduct of the
business of the Issuer or any Consolidated Subsidiary or the ownership of
the assets of any of them which were not incurred in connection with the
borrowing of money or the obtaining of advances or credit and which do not,
in the opinion of the Issuer, materially impair the use of such assets in
the operation of the business of the Issuer or such Consolidated Subsidiary
or the value of such assets for the purposes thereof; or (k) liens relating
to accounts receivable of the Issuer or any of its Subsidiaries which have
been sold, assigned or otherwise transferred to another Person in a
transaction classified as a sale of accounts receivable in accordance with
generally accepted accounting principles (to the extent the sale by the
Issuer or the applicable Subsidiary is deemed to give rise to a lien in
favor of the purchaser thereof in such accounts receivable or the proceeds
thereof). Notwithstanding the above, the Issuer or any Consolidated
Subsidiary may, without securing the 2017 Notes, create or assume any
Indebtedness which is secured by a lien which would otherwise be subject to
the foregoing restrictions, provided that at the time of such creation or
assumption, after giving effect thereto, Exempted Debt does not exceed 10%
of the total assets of the Issuer and its Subsidiaries on a consolidated
basis, determined in accordance with generally accepted accounting
principles.
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B-8
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Limitation on Sale and Lease-Back Transactions
. The Issuer covenants that,
so long as any of the 2017 Notes remain outstanding, the Issuer will not,
nor shall the Issuer permit any Consolidated Subsidiary to, enter into any
sale and lease-back transaction with respect to any assets, other than any
sale lease-back transaction (involving a lease for a term of not more than
three years), unless either (a) the Issuer or such Consolidated Subsidiary
would be entitled to incur Indebtedness secured by a lien on the assets to
be leased in an amount at least equal to the Attributable Debt in respect of
such transaction without equally and ratably securing the 2017 Notes
pursuant to clauses (a) through (j) inclusive of the covenant with respect
to “Limitation on Liens” above, or (b) the proceeds of the sale of the
assets to be leased are at least equal to their fair market value (as
determined by the Board of Directors of the Issuer) and the proceeds are
applied to the purchase or acquisition (or, in the case of real property,
the construction) of assets or to the retirement (other than at maturity or
pursuant to a mandatory sinking fund or mandatory redemption provision) of
indebtedness. The foregoing limitation shall not apply, if at the time the
Issuer or any Consolidated Subsidiary enters into such sale and lease-back
transaction, and after giving effect thereto, Exempted Debt does not exceed
10% of the total assets of the Issuer and its Subsidiaries on a consolidated
basis, determined in accordance with generally accepted accounting
principles.
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The term “Attributable Debt” in connection with a sale and lease-back
transaction shall mean, as of the date of determination, the lesser of (a)
the fair value of the assets subject to such transaction, as determined by
McKesson’s Board of Directors, or (b) the present value (discounted at the
rate of interest set forth in or implicit in the terms of such lease or, if
it is not practicable to determine such rate, the weighted average interest
rate per annum borne by all series of Securities then Outstanding and
subject to the “Limitation on Sale and Lease-back Transactions” covenant
above compounded semi-annually, in either case as determined by the
principal accounting or financial officer of the Issuer) of the obligations
of the Issuer or any Consolidated Subsidiary for net rental payments during
the remaining term of all leases (including any period for which such lease
has been extended or may, at the option of the lessor, be extended).
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The term “Consolidated Subsidiary” shall mean any Subsidiary substantially
all the property of which is located, and substantially all the operations
of which are conducted, in the United States of America whose financial
statements are consolidated with those of the Issuer in accordance with
generally accepted accounting principles.
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The term “Exempted Debt” shall mean the sum of the following as of the date
of determination: (i) Indebtedness of the Issuer and its Consolidated
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B-9
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Subsidiaries incurred after the date of issuance of the Notes and secured by
liens not permitted to be created or assumed pursuant to the covenant with
respect to “Limitation on Liens” above, and (ii) Attributable Debt of the
Issuer and its Consolidated Subsidiaries in respect of every sale and
lease-back transaction entered into after the date of issuance of the Notes,
other than leases expressly permitted by the covenant with respect to
“Limitation on Sale and Lease-Back Transactions” above.
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The term “Indebtedness” shall mean all items classified as indebtedness on
the most recently available consolidated balance sheet of the Issuer and its
Consolidated Subsidiaries, in accordance with generally accepted accounting
principles.
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The term “net rental payments” under any lease of any period shall mean the
sum of the rental and other payments required to be paid in such period by
the lessee thereunder, not including, however, any amounts required to be
paid by such lessee (whether or not designated as rental or additional
rental) on account of maintenance and repairs, reconstruction, insurance,
taxes, assessments, water rates or similar charges required to be paid by
such lessee thereunder or any amounts required to be paid by such lessee
thereunder contingent upon the amount of sales, maintenance and repairs,
reconstruction, insurance, taxes, assessments, water rates or similar
charges.
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The term “Subsidiary” shall mean any corporation of which at least a
majority of the outstanding stock having voting power under ordinary
circumstances for the election of the board of directors of such corporation
shall at the time be owned by the Issuer or by the Issuer and one or more
Subsidiaries or by one or more Subsidiaries.
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20.
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Conversion and Exchange
. The 2017 Notes shall not be
convertible into or exchangeable into any other security.
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21.
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Further Issues
. The Issuer may, without notice to or
the consent of the holders of the 2017 Notes, create and issue further notes
ranking equally and ratably with the 2017 Notes in all respects, or in all
respects except for the payment of interest accruing prior to the issue date of
such further notes. Such further notes shall be consolidated and form a single
series with the 2017 Notes and shall have the same terms as to status,
redemption or otherwise as the 2017 Notes.
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22.
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Other Terms
. The 2017 Notes shall have the other terms
and shall be substantially in the form set forth in the form of the 2017 Notes
attached hereto as Annex B-1. In case of any conflict between this Annex B and
the 2017 Notes, the form of the 2017 Notes shall control.
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B-10
Capitalized terms used but not otherwise defined in this Annex B shall have the respective
meanings ascribed to such terms in the Indenture.
B-11
ANNEX B-1
[FORM OF 2017 NOTE]
THIS NOTE IS A REGISTERED GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED
TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. UNLESS THIS NOTE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW
YORK, NEW YORK) TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. TRANSFERS OF THIS REGISTERED
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF THE
DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE.
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No. 1
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CUSIP NO. 581557 AV7
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McKESSON CORPORATION
5.70% NOTES DUE MARCH 1, 2017
McKesson Corporation, a Delaware corporation (the “Issuer,” which term includes any successor
corporation under the Indenture hereinafter referred to), for value received, hereby promises to
pay to, Cede & Co., or registered assigns, the principal sum of Five Hundred Million Dollars
($500,000,000) on March 1, 2017 and to pay interest on said principal sum from March 5, 2007, or
from the most recent interest payment date to which interest has been paid or duly provided for,
semi-annually in arrears on March 1 and September 1 (each such date, an “Interest Payment Date”) of
each year commencing on September 1, 2007, at the rate of 5.70% per annum until the principal
hereof shall have become due and payable.
The amount of interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year comprised of twelve 30-day months. In the event that any date on which the
principal or interest payable on this Note is not a Business Day, then payment of principal or
interest payable on such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of such delay). The interest installment so
payable, and punctually paid or duly provided for, on any Interest Payment Date will, as provided
in the Indenture (referred to on the reverse hereof) be paid to the person in whose name this Note
is registered at the close of business on the record date for such interest installment, which
shall be the close of business on the immediately preceding February 15 and August 15 prior to such
Interest Payment Date, as applicable. Any such interest installment not punctually paid or duly
provided for shall forthwith cease to be payable to the registered holders on such record date and
may be paid to the person in whose name this Note is registered at the close of business on a
subsequent record date (which shall be not less than five Business Days prior to the date of
payment of such defaulted interest), notice whereof shall be given by mail by or on behalf of the
Issuer to the registered holders of Notes not less than 15 days preceding such subsequent record
date, all as more fully provided in the Indenture. The principal of and the interest on this Note
shall be payable at the office or agency of the Issuer maintained for that purpose in any coin or
currency of the United States of America that at the time of payment is legal tender for payment of
public and private debts;
provided, however,
that payment of interest may be made at the option of
the Issuer by check mailed to the person entitled thereto at such address as shall appear in the
registry books of the
Issuer;
provided, further
that for so long as this Note is represented by a Registered Global
Security, payment of principal, premium, if any, or interest on this Note may be made by wire
transfer to the account of the Depositary or its nominee.
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee (as defined below) under the Indenture (as defined below), by the manual signature of one
of its authorized officers, this Note shall not be entitled to any benefit under the Indenture or
be valid or obligatory for any purpose.
Capitalized terms used in this Note which are defined in the Indenture shall have the
respective meanings assigned to them in the Indenture.
The provisions of this Note are continued on the reverse side hereof and such continued
provisions shall for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly executed, manually or in
facsimile, and an imprint or facsimile of its corporate seal to be imprinted hereon.
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McKESSON CORPORATION
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By:
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Name:
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Nicholas A. Loiacono
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Title:
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Vice President and Treasurer
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Attest:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities
referred to in the within-mentioned
Indenture.
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THE BANK OF NEW YORK TRUST COMPANY, N.A.
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as Trustee
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By:
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Authorized Signatory
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Dated:
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[REVERSE SIDE OF NOTE]
This Note is one of a duly authorized series of securities (the “Securities”) of the Issuer
designated as its 5.70% Notes due March 1, 2017 (the “Notes”). The Securities are all issued or
to be issued under and pursuant to an Indenture, dated as of March 5, 2007 (the “Indenture”), duly
executed and delivered between the Issuer and The Bank of New York Trust Company, N.A., a national
banking association (the “Trustee,” which term includes any successor Trustee with respect to the
Securities under the Indenture), to which the Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights thereunder of the Issuer, the
Trustee and the holders of the Securities and the terms upon which the Notes are to be
authenticated and delivered. The terms of individual series of Securities may vary with respect to
interest rate or interest rate formulas, issue dates, maturity, redemption, repayment, currency of
payment and otherwise.
The Notes are issuable only as Registered Securities in minimum denominations of $1,000 and
integral multiples of $1,000 in excess thereof. As provided in the Indenture and subject to
certain limitations therein set forth, the Notes are exchangeable for a like aggregate principal
amount of Notes as requested by the holder surrendering the same.
Except as set forth below, this Note is not redeemable and is not entitled to the benefit of a
sinking fund or any analogous provision.
The Notes may be redeemed, in whole at any time or in part from time to time, at the option of
the Issuer at a redemption price equal to the greater of (i) 100% of their principal amount and
(ii) an amount, as determined by the Quotation Agent, equal to the sum of the present values of the
remaining scheduled payments of principal and interest thereon (not including any portion of such
payments of interest accrued as of the date of redemption), discounted to the date of redemption on
a semi-annual basis (assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 20 basis points, plus, in each case, accrued interest thereon to the date of redemption.
Notwithstanding the foregoing, installments of interest on the Notes that are due and payable on
interest payment dates falling on or prior to a redemption date will be payable on the interest
payment date to the registered holders as of the close of business on the relevant record date.
Holders of the Notes will receive notice thereof at least 30 and not more than 60 days prior to the
date fixed for redemption. Unless the Issuer defaults in payment of the redemption price, on and
after the redemption date, interest will cease to accrue on the Notes or portions thereof called
for redemption. If less than all of the Notes are to be redeemed, the Notes to be redeemed will be
selected by the Trustee by a method the Trustee deems to be fair and appropriate.
“Comparable Treasury Issue” means the United States Treasury security selected by the
Quotation Agent as having a maturity comparable to the remaining term of the Notes that would be
utilized, at the time of selection and in accordance with customary financial practice, in pricing
new issues of corporate debt securities of comparable maturity to the remaining term of the Notes.
“Comparable Treasury Price” means, with respect to any redemption date, (i) the average of
four Reference Treasury Dealer Quotations for such redemption date, after excluding the highest and
lowest such Reference Treasury Dealer Quotations, or (ii) if the Trustee obtains fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuer.
“Reference Treasury Dealer” means (i) Banc of America Securities LLC (or its affiliates that
are Primary Treasury Dealers) and its successors; provided, however, that if any of the
1
foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a
“Primary Treasury Dealer”), the Issuer shall substitute therefor another Primary Treasury Dealer;
and (ii) any other Primary Treasury Dealer selected by the Issuer.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer
and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for
the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount)
quoted in writing to the Trustee by that Reference Treasury Dealer at 5:00 p.m., New York City
time, on the third business day preceding that redemption date.
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the
semi-annual equivalent yield to maturity of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the
Comparable Treasury Price for such redemption date.
If a Change of Control Triggering Event occurs, unless the Issuer has exercised its right to
redeem the Notes as described above, holders of the Notes will have the right to require the Issuer
to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000 in excess thereof)
of their Notes pursuant to the offer described below (the “Change of Control Offer”). In the
Change of Control Offer, the Issuer will be required to offer payment in cash equal to 101% of the
aggregate principal amount of Notes repurchased plus accrued and unpaid interest, if any, on the
Notes repurchased, to the date of purchase (the “Change of Control Payment”). Within 30 days
following any Change of Control Triggering Event, the Issuer will be required to mail a notice to
holders of the Notes describing the transaction or transactions that constitute the Change of
Control Triggering Event and offering to repurchase the Notes on the date specified in the notice,
which date will be no earlier than 30 days and no later than 60 days from the date such notice is
mailed (the “Change of Control Payment Date”), pursuant to the procedures described herein and in
such notice. The Issuer must comply with the requirements of Rule 14e-1 under the Exchange Act and
any other Notes laws and regulations thereunder to the extent those laws and regulations are
applicable in connection with the repurchase of the Notes as a result of a Change of Control
Triggering Event. To the extent that the provisions of any securities laws or regulations conflict
with the Change of Control provisions herein, the Issuer will be required to comply with the
applicable securities laws and regulations and will not be deemed to have breached its obligations
under the Change of Control provisions herein by virtue of such conflicts.
On the Change of Control Payment Date, the Issuer will be required, to the extent lawful, to
(i) accept for payment all Notes or portions of Notes properly tendered pursuant to the Change of
Control Offer; (ii) deposit with the paying agent an amount equal to the Change of Control Payment
in respect of all Notes or portions of Notes properly tendered; and (iii) deliver or cause to be
delivered to the Trustee the Notes properly accepted together with an Officer’s Certificate stating
the aggregate principal amount of Notes or portions of Notes being purchased.
“Below Investment Grade Rating Event” means the Notes are rated below an Investment Grade
Rating by each of the Rating Agencies (as defined below) on any date from the date of the public
notice of an arrangement that could result in a Change of Control until the end of the 60-day
period following public notice of the occurrence of the Change of Control (which 60-day period
shall be extended so long as the rating of the Notes is under publicly announced consideration for
possible downgrade by any of the Rating Agencies).
“Change of Control” means the occurrence of any of the following: (1) the direct or indirect
sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all of the properties or assets of
the Issuer
2
and its Subsidiaries taken as a whole to any Person other than the Issuer or one of its
Subsidiaries; (2) the consummation of any transaction (including, without limitation, any merger or
consolidation) the result of which is that any Person becomes the beneficial owner, directly or
indirectly, of more than 50% of the then outstanding number of shares of the Issuer’s voting stock;
or (3) the first day on which a majority of the members of the Issuer’s Board of Directors are not
Continuing Directors. Notwithstanding the foregoing, a transaction will not be deemed to be
involve a Change of Control if (i) the Issuer becomes a wholly owned subsidiary of a holding
company and (ii) the holders of the voting stock of such holding company immediately following that
transaction are substantially the same as the holders of our voting stock immediately prior to that
transaction.
“Change of Control Triggering Event” means the occurrence of both a Change of Control and a
Below Investment Grade Rating Event.
“Continuing Directors” means, as of any date of determination, any member of the Board of
Directors of the Issuer who (1) was a member of such Board of Directors on the date of original
issue of this Security; or (2) was nominated for election or elected to such Board of Directors
with the approval of a majority of the Continuing Directors who were members of such Board of
Directors at the time of such nomination or election (either by a specific vote or by approval of
the Issuer’s proxy statement in which such member was named as a nominee for election as a
director, without objection to such nomination).
“Fitch” means Fitch Ratings.
“Investment Grade Rating” means a rating equal to or higher than BBB- (or the equivalent) by
Fitch, Baa3 (or the equivalent) by Moody’s and BBB- (or the equivalent) by S&P.
“Moody’s” means Moody’s Investors Service, Inc.
“Person” has the meaning set forth in the Indenture and includes a “person” as used in Section
13(d)(3) of the Exchange Act.
“Rating Agencies” means (1) each of Fitch, Moody’s and S&P; and (2) if any of Fitch, Moody’s
or S&P ceases to rate the notes or fails to make a rating of the notes publicly available for
reasons outside of our control, a “nationally recognized statistical rating organization” within
the meaning of Rule 15c3-1(c)(2)(vi)(F) under the Exchange Act, selected by the Issuer (as
certified by a Board Resolution) as a replacement agency for Fitch, Moody’s or S&P, or all of them,
as the case may be.
“S&P” means Standard & Poor’s Ratings Services, a division of The McGraw-Hill Companies, Inc.
If an Event of Default with respect to the Notes shall occur and be continuing, the principal
of all the Notes may be declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture contains provisions permitting the Issuer and the Trustee, with the consent of
the holders of not less than a majority in aggregate principal amount of the Senior Securities or
Subordinated Securities, as the case may be, of all series issued under such Indenture then
outstanding and affected (each voting as one class), to add any provisions to, or change in any
manner, eliminate or waive any of the provisions of, such Indenture or modify in any manner the
rights of the holders of the Securities of each series or Coupons so affected;
provided
that the
Issuer and the Trustee may not,
3
without the consent of the holder of each Outstanding Security affected thereby, (i) extend
the final maturity of the principal of any Security or reduce the principal amount thereof or
premium thereon, if any, or reduce the rate or extend the time of payment of interest thereon, or
reduce any amount payable on redemption thereof or change the currency in which the principal
thereof (other than as otherwise may be provided with respect to such series), premium, if any, or
interest thereon is payable or reduce the amount of the principal of any Original Issue Discount
Security that is payable upon acceleration or provable in bankruptcy, or in the case of
Subordinated Securities of any series, modify any of the subordination provisions or the definition
of “Senior Indebtedness” relating to such series in a manner adverse to the holders of such
Subordinated Securities, or alter certain provisions of the Indenture relating to Securities not
denominated in Dollars or the Judgment Currency of such Securities or impair or affect the right of
any Securityholder to institute suit for the enforcement of any payment thereof when due or, if the
Securities provide therefor, any right of repayment at the option of the Securityholder or (ii)
reduce the aforesaid percentage in principal amount of Securities of any series issued under the
Indenture, the consent of the holders of which is required for any such modification. It is also
provided in the Indenture that, with respect to certain defaults or Events of Default regarding the
Securities of any series, the holders of a majority in aggregate principal amount Outstanding of
the Securities of each such series, each such series voting as a separate class (or, of all
Securities, as the case may be voting as a single class) may under certain circumstances waive all
defaults with respect to each such series (or with respect to all the Securities, as the case may
be) and rescind and annul a declaration of default and its consequences, but no such waiver or
rescission and annulment shall extend to or affect any subsequent default or shall impair any right
consequent thereto. The preceding sentence shall not, however, apply to a default in the payment
of the principal of or interest on any of the Securities.
No reference herein to the Indenture and no provision of this Note or of the Indenture shall
alter or impair the obligation of the Issuer, which is absolute and unconditional, to pay the
principal of and interest on this Note at the time, place and rate, and in the coin or currency,
herein prescribed.
As provided in the Indenture and subject to certain limitations therein set forth, the
transfer of this Note may be registered on the registry books of the Issuer, upon surrender of this
Note for registration of transfer at the office or agency of the Issuer maintained by the Issuer
for such purpose in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the Issuer and the Trustee
duly executed by, the holder hereof or by its attorney duly authorized in writing, and thereupon
one or more new Notes of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.
No service charge shall be made for any such registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection therewith.
Prior to due presentment of this Note for registration of transfer, the Issuer, the Trustee
and any agent of the Issuer or the Trustee may treat the person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be overdue, and neither
the Issuer, the Trustee nor any such agent shall be affected by notice to the contrary.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW
YORK, INCLUDING, WITHOUT LIMITATION, SECTION 5-1401 OF THE NEW YORK GENERAL OBLIGATIONS LAW.
4
[FORM OF SCHEDULE FOR ENDORSEMENTS ON REGISTERED
GLOBAL SECURITIES TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Registered Global Securities
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Principal Amount
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of Notes
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by which this Registered
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|
|
|
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Global Security is to be
|
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Remaining Principal
|
|
|
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|
Reduced or Increased,
|
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Amount of this
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|
|
|
|
and Reason for
|
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Registered
|
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Date
|
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Reduction or Increase
|
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Global Security
|
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Notation Made By
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5